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. Christopher Jepsen (Motion by defendant charged with child pornography offense to strike from the indictment the “prior conviction” enhancement pursuant to 18 U.S.C. § 2252(b)(2): for purposes of the enhancement, a conviction is “prior” if it is prior to the defendant’s violation of § 2252(a)(4) for the enhancement in § 2252(b)(2); and the “conviction” is established by a finding of guilt, not imposition of a sentence or a judgment, as well; the defendant had such a “prior conviction,” even though original judgment on state offenses, before the defendant allegedly committed the § 2252(a)(4) offense, was vacated and a new corrected judgment was imposed only after the defendant allegedly committed the § 2252(a)(4) offense.)01/26/2018Mark W. Bennett
U.S. v. Jeremy Terrell (Motion to Strike Information raised an issue of first impression: May the executive branch of the United States government refuse to allow a defendant to continue to cooperate with law enforcement with the expectation (but no promise) of receiving a substantial assistance motion, simply because he exercises his statutory rights to a preliminary hearing and detention hearing after turning himself in to authorities? Reviewing standards for vindictive prosecution claim and concluding that while defendant did not present any evidence of actual vindictiveness, the context and objective circumstances presented a reasonable likelihood of vindictiveness. Thus, the court found defendant presented objective evidence giving rise to a presumption of vindictive motivation which was not rebutted by the prosecution and granted motion. 12/09/2016Mark W. Bennett
U.S. v. Dennis Neil Yorgensen (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress and granting 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: that defendant established a Franks violation regarding the search warrant for his residence. Accordingly, the search warrant was invalid and all evidence seized during the execution of the warrant was suppressed. In addition, concluding that the taint of the illegal search and arrest had not dissipated by the time defendant was interviewed by the police and, therefore, defendant’s statements to the police were required to be suppressed as the fruits of an unlawful search and seizure. Alternatively, addressing, and rejecting, defendant’s claim that his post-arrest statements must be suppressed because they occurred after he invoked his right to counsel.) 12/07/2015Mark W. Bennett
U.S. v. Randy Feauto (Opinion on resentencing of defendant pursuant to Amendment 782, the “All Drugs Minus Two” amendment to the Sentencing Guidelines: whether policy statement U.S.S.G. § 1B1.10(c), which implements Amendment 782, exceeds the Sentencing Commission’s authority and/or violates the non-delegation doctrine under the separation-of-powers principle by nullifying mandatory minimum sentences on resentencing, producing pernicious consequences, including different sentences on original sentencing and resentencing of a defendant who faced a mandatory minimum, but received a substantial assistance motion pursuant to § 3553(e))11/23/2015Mark W. Bennett
U.S. v. Bruce Jeffers (Sentencing opinion concerning defendant who pleaded guilty to separate counts of being a felon in possession of a firearm and being a felon in possession of ammunition; upward variance based on insufficiency of the advisory guidelines sentence, where the defendant had five different prison terms for crimes—including voluntary manslaughter, assault with a deadly weapon, arson of an inhabited structure, evading a police officer and disregarding safety, being a felon and addict in possession of a firearm, and burglary of a home—in three different states and nine jail terms for other crimes, but could not be sentenced as an Armed Career Criminal after Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015), and most of his prior convictions were too old to count in the computation of his criminal history category)09/30/2015Mark W. Bennett
USA v. Clark -- Report and Recommendation on defendant's motion to suppress. Court found the officer had probable cause to arrest Clark and therefore evidence obtained as a direct result of that arrest did not merit suppression.09/04/2015Leonard T. Strand
USA v. Federico Jimenez Hernandez -- Order denying defendant's motion for court ordered writ. Court found defendant has failed to cite any legal authority under which this court can grant relief. Court denied defendant's motion. 08/24/2015Leonard T. Strand
U.S. v. Teresa Ann Simeon (Motion to suppress, order accepting Magistrate Judge’s report and recommendation regarding motion to suppress, finding probable cause existed to search defendant’s car before deputy and his drug detection dog conducted a free air dog sniff. Alternatively, find that the prosecution established that drug detection dog was a properly trained, certified, and reliable at the time of the free air dog sniff, that the deputy conducted the free air dog sniff properly, that the drug detection dog alerted and then indicated at the driver’s side of defendant’ car, and thus, the combination of the free air dog sniff results and other information known established probable cause to search defendant’s car. Finally, finding that because the evidence the prosecution relied upon to obtain the search warrant for defendant’s cell phones was gathered lawfully, there was no legal basis to suppress the evidence gathered from the execution of that search warrant.) 07/20/2015Mark W. Bennett
USA v. Lobsinger -- Report and Recommendation on defendant's motion to dismiss Counts 1 and 2 of the indictment. Court found that the State had promised in the plea agreement that no federal criminal charges would be filed after defendant pled guilty. Court found the State prosecutor did not have express actual authority to bind the Government to that promise. Nor did the State prosecutor have implied actual authority to bind the Government to a promise made in the state plea agreement. Court recommended that the motion to dismiss be denied. 07/02/2015Leonard T. Strand
U.S. v. Mark Weller (Sentencing opinion concerning defendant who pleaded guilty to conspiracy to distribute methamphetamine and distribution of methamphetamine; defendant’s objection to counting a prior conviction for contributing to the delinquency of a minor (contributing to a curfew violation) in the determination of his criminal history pursuant to U.S.S.G. § 4A1.2(c): application of the “multi-factor test” in Amendment 709 and Application Note 12)05/05/2015Mark W. Bennett
U.S. v. Quality Egg, LLC, et al (Memorandum opinion and order on defendants’ pre-sentencing motions; defendants pleaded guilty to violating 21 U.S.C. § 331(a) by shipping and selling shell eggs that contained Salmonella Enteritidis across state lines as responsible corporate officers; defendants subsequently filed motions alleging that a term of imprisonment for their offenses would be unconstitutional under the Eighth and Fifth Amendments and that a finding by the Court that defendants had relevant knowledge of the conduct underlying their strict liability offenses would be unconstitutional under the Sixth Amendment; the Court rejected defendants’ motions, finding defendants had relevant knowledge and imposed a three-month term of imprisonment.)04/14/2015Mark W. Bennett
United States of America v. Simeon -- Report and Recommendation on defendant's motion to suppress evidence seized from a vehicle after a free air dog sniff. Court found that the defendant's detention was not unreasonably prolonged. Court found there was reasonable suspicion to conduct a free air dog sniff of defendant's vehicle in the parking lot. Court found there was probable cause to search defendant's vehicle, before the free air dog sniff was conducted. However, Court also found that the narcotics-detector dog was reliable and certified and that his indication of narcotics on defendant's vehicle provided probable cause to search the vehicle. Court recommended defendant's motion to suppress evidence be denied. 04/07/2015Leonard T. Strand
U.S. v. Anthony Bartleson (Bartlesonpleaded guilty to embezzling from an employee benefit plan in violation of 18 U.S.C. § 664. This memorandum opinion and order confronts two of the key fighting issues at his sentencing hearing on February 6, 2015: (1) whether Bartleson abused a position of private trust under U.S.S.G. § 3B1.3; and (2) whether his criminal restitution order, pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, was to include the thirteen employees’ lost investment earnings and tax liabilities incurred in 2007, in addition to the $41,878.22 already paid to the government by Bartleson. In applying the three-factor test for determining whether Bartleson abused a position of private trust, the Court held that Bartleson occupied a position of private trust; his position facilitated the commission and concealment of his embezzlement; and the sentencing enhancement is not included in the base offense level or specific offense characteristic. Bolstering its finding that the abuse-of-trust enhancement applied, the Court analyzed the applicability of Note 5 of the Commentary under U.S.S.G. § 3B1.3. In addition, in considering the full amount of the victims’ losses for restitution purposes, the Court made a conservative estimate by using the S&P 500 to calculate lost investment earnings and the lowest tax rate for 2007 to calculate tax liabilities for that year. In doing so, the Court ordered Bartleson to pay an additional $20,838.99 (i.e., $19,640.57 for lost investments and $1,198.42 for tax liabilities) in restitution to the victims. Finally, Bartleson’s candor and genuine and sincere remorse during his sentencing allocution in part influenced the Court’s decision that a sentence of probation for two years was appropriate).02/10/2015Mark W. Bennett
USA v. Dimmick -- Order on motion for release filed by defendant appearing on a writ of habeas corpus ad prosequendum. Defendant requested that he be returned to state custody pending trial in order to participate in state parole proceedings. He argued that the release considerations set forth in the Bail Reform Act do not apply under these circumstances. The court denied the motion, holding that the Bail Reform Act applies and that the Government met its burden of proving that the defendant should be detained in federal custody while awaiting trial.01/30/2015Leonard T. Strand
U.S. v. Jamal & Levon Dean (Post-trial motions for judgment of acquittal and new trial, concluding: taken in the light most favorable to the prosecution, the evidence at trial was sufficient to support the finding of a single conspiracy; the prosecution presented sufficient evidence to support the conclusion that defendants knew that the object of the conspiracy was to rob drug dealers; the prosecution also established a jurisdictional nexus between interstate commerce and defendants’ robberies of both victims; the evidence at trial was sufficient to establish that defendant possessed a 22 rifle in furtherance of the robberies, either personally or under an aiding and abetting theory; and there was sufficient evidence to establish that defendant intended to cause death or serious bodily injury during the carjacking of victim’s car.)12/23/2014Mark W. Bennett
USA v. Hernandez-Morales -- Report and Recommendation on third-party petition for return of money pursuant to 21 U.S.C. 853(n). Court found Rafael E. Chavez Lujan did not meet his burden of proof and was not entitled to the return of forfeited money. Court recommended the petition be denied.12/16/2014Leonard T. Strand
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.)11/25/2014Mark W. Bennett
USA v. Mosley -- Report and Recommendation on defendant's motion to suppress evidence obtained as a result of a warrantless search of a duffel bag dropped by defendant in his own yard during flight from law enforcement. Court found that the defendant did not abandon the bag by leaving it within the curtilage of his own home. Court further found that the plain view/plain smell doctrine did not justify law enforcement's search of the bag without first obtaining a warrant. Court recommended that the motion to suprress be granted.09/26/2014Leonard T. Strand
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?)09/05/2014Mark W. Bennett
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.)07/22/2014Mark W. Bennett
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.)06/30/2014Mark W. Bennett
USA v. Patrie, Court sentencing memorandum 06/12/2014Linda R. Reade
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)06/11/2014Mark W. Bennett
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)05/01/2014Mark W. Bennett
USA v. McCammon -- Report and Recommendation on defendant's motion to suppress evidence from a post-Miranda interview and subsequent search of his residence. Court found that defendant's statements were not involuntary due to his impaired state or any alleged coercive police activity. Defendant also provided a voluntary, knowing and intelligent waiver of his Miranda rights before making a statement. Court recommended that the motion to suppress be denied. 01/23/2014Leonard T. Strand
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)01/21/2014Mark W. Bennett
USA v. Himes -- Report and Recommendation on defendant's motion to suppress evidence resulting from impoundment and inventory of vehicle. Court found that decision to impound was not based on community caretaking function or standardized criteria and was therefore an unreasonable seizure and search under the Fourth Amendment. Court recommended that evidence found in vehicle be suppressed as well as subsequently-gathered evidence from defendant's residence and statements he made to officers while in custody.12/30/2013Leonard T. Strand
USA v. Montoya-Echeverria -- Order granting defendant's motion to strike portions of the indictment. Court found that 8 U.S.C. 1326(a) identifies the elements of the alleged offense (reentry of deported alien) and subsection (b)(2) describes circumstances relevant to sentencing. Court ordered that references to aggravated felon, subsection (b)(2) and defendant's alleged prior conviction be stricken as surplusage pursuant to Federal Rule of Criminal Procedure 7(d).12/30/2013Leonard T. Strand
United States of America v. Delgado -- Order granting motion for pretrial detention. Court found the Government had the right to seek pretrial detention because defendant had been convicted of two or more offenses decribed in subparagraphs (A) through (C) as pvoided in 18 U.S.C. section 3142(f)(1)(D). Court found pretrial detention was warranted based on the weight of the evidence against the defendant and her history and characteristics.12/04/2013Leonard T. Strand
United States of America v. Dean -- Report and Recommendation on defendant's motion to dismiss counts for lack of jurisdiction. Court found that it had subject matter jurisdiction over counts based on alleged violations of the Hobbs Act and that defendant could not challenge the sufficiency of the Government's evidence prior to trial. Court recommended the motion be denied without prejudice to defendant's right to make a motion for acquittal pursuant to Federal Rules of Criminal Procedure 29.12/03/2013Leonard T. Strand
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.)10/23/2013Mark W. Bennett
USA v. Sandoval -- Report and Recommendation on defendant's motion to suppress evidence seized from a search of his house and from a post-Miranda interview. The court found the information supporting the search warrant was not stale, it was reaonable for the issuing judge to rely upon information from all informants and there was sufficient evidence to connect the defendant and his residence to information about "Nacho." Court also found that exclusion of the evidence was not appropriate under United States v. Leon and recommended defendant's motion be denied.09/03/2013Leonard T. Strand
USA v. Barragan -- Report and Recommendation denying defendant's motion to suppress evidence seized from a search of his hotel room and from a post-Miranda interview. The court found that defendant gave voluntary consent to search his hotel room, the search did not exceed the scope of consent and the defendantprovided a voluntary, knowing and intelligent waiver of his Miranda rights.08/27/2013Leonard T. Strand
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)08/16/2013Mark W. Bennett
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.)07/31/2013Mark W. Bennett
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.)07/22/2013Mark W. Bennett
USA v. Hansen -- Report and Recommendation on defendant's motion to suppress evidence obtained from the placement of a GPS tracking device on defendant's vehicle. Court found that although the search warrant applications violated Iowa law because the applicant was not a "special state agent," the search did not violate the defendant's Fourth Amendment rights because the warrants were supported by probable cause. Court also found that exclusion of the evidence was not appropriate under United States v. Leon and recommended defendant's motion be denied. 06/19/2013Leonard T. Strand
USA v. Clayton -- Order denying pro se motion to proceed under a pseudonym and prohibit public disclosure of defendant's physical description. Court held that defendant's concern for anonymity was speculative and unsupported and did not fall within the limited scope of legitimate reaons for anonymity in criminal proceedings. Additionally, the court noted that under these circumstances, an oder prohibiting public disclosure of defendant's physical description would violate the First Amendment.06/14/2013Leonard T. Strand
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.)06/11/2013Mark W. Bennett
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.)06/07/2013Mark W. Bennett
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.)06/06/2013Mark W. Bennett
U.S. v. James Sumner; Order granting in part and denying in part the defendant's motion for judgment of acquittal and motion for new trial. The court found that there was insufficient evidence to support the jury's guilty verdict as to Count 1; however, the court concluded that there was sufficient evidence to support the jury's guilty verdicts as to Count 2 through 4. In the event that the Eighth Circuit Court of Appeals reverses the court's ruling as to Count 1, the court granted the defendant's motion for new trial as to that count. 05/16/2013Linda R. Reade
USA v. Poole -- Report and Recommendation denying defendant's motion to suppress evidence seized from a vehicle after a traffic stop. The court found that the initial stop was lawful and the extension of the stop to bring a narcotics-detecting canine to the scene was supported by the officer's reasonable suspicion of criminal activity. The court also found that the canine was certified and reliable and that his indication of narcotics provided probable cause to search the vehicle.04/18/2013Leonard T. Strand
U.S. v. Angela Johnson (“Penalty retrial” of capital defendant after death and life sentences for five murders in furtherance of a continuing criminal enterprise (CCE murder), in violation of 21 U.S.C. § 848(e), a provision of the Anti-Drug Abuse Act (ADAA), were set aside on her § 2255 Motion: prosecution’s motion to reconsider parts of the ruling on scope of the scope of the “penalty retrial” challenging rulings: (1) that the new jury will not redetermine the defendant’s eligibility for the death sentence; (2) that the court will instruct the new jury that the defendant’s only possible sentences are death or life without parole; and (3) that evidence of the defendant’s future dangerousness outside of prison will be excluded; defendant’s motion to reconsider ruling that non-statutory aggravating factors, like mitigating factors, may assert separate incidents as separate factors)03/05/2013Mark W. Bennett
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.)01/30/2013Mark W. Bennett
USA v. Sigillito et al, Court sentencing memorandum12/20/2012Linda R. Reade
USA v. Ramirez-Hernandez; USA v. Millan-Vasquez; and USA v. Roque-Castro -- Order on detention for defendants facing charges of illegal reentry. Court held that Government met burden of showing no condition or combination of conditions could reasonably assure the defendants' apperance as required based on the testimony of an ICE officer that removal was certain if defendants were released and taken back into ICE custody and based on the court's lack of authority to impose conditions that could prevent removal.12/19/2012Leonard T. Strand
USA v. Ramirez-Hernandez; USA v. Millan-Vasquez; and USA v. Roque-Castro -- Order on detention for defendants facing charges of illegal reentry. Court held that Government met burden of showing no condition or combination of conditions could reasonably assure the defendants' apperance as required based on the testimony of an ICE officer that removal was certain if defendants were released and taken back into ICE custody and based on the court's lack of authority to impose conditions that could prevent removal.12/19/2012Leonard T. Strand
USA v. Ramirez-Hernandez; USA v. Millan-Vasquez; and USA v. Roque-Castro -- Order on detention for defendants facing charges of illegal reentry. Court held that Government met burden of showing no condition or combination of conditions could reasonably assure the defendants' apperance as required based on the testimony of an ICE officer that removal was certain if defendants were released and taken back into ICE custody and based on the court's lack of authority to impose conditions that could prevent removal.12/19/2012Leonard T. Strand
US v. Mathison -- Order granting motion for severance of trial. Defendant raised a legitimate Bruton concern and the Government was unable to offer any concrete solutions to avoid a violation of defendant's Sixth Amendment rights at a joint trial. In addition, the court identified a serious risk of a "spillover" effect if defendant was tried with codefendants based on the nature of the charges. The defendant therefore met his burden of demonstrating a joint trial would cause him to suffer real prejudice.12/13/2012Leonard T. Strand
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.) 12/03/2012Mark W. Bennett
USA v. Troy Fulkerson -- Order overruling defendant's relevancy objection to his criminal history and circumstances of arrest offered by the Government to be used in determining revocation of pretrial release. Court found that evidence of dangerousness did not have to relate to the charged offense and the requirements for revocation and detention under 18 U.S.C. section 3148(b) were met.11/21/2012Leonard T. Strand
U.S. v. Angela Johnson (“Penalty retrial” of capital defendant after death and life sentences for five murders in furtherance of a continuing criminal enterprise (CCE murder), in violation of 21 U.S.C. § 848(e), a provision of the Anti-Drug Abuse Act (ADAA), were set aside on her § 2255 Motion: defendant’s first set of motions: (1) “omnibus motion” to dismiss the “special findings” from the second superseding indictment and to strike notice of intent to seek the death penalty; (2) motion to dismiss particular aggravating factors from the second superseding indictment, and to strike particular aggravating factors from the second notice of intent to seek the death penalty, and for other relief; (3) motion to compel discovery of evidence in support of United States Attorney’s reasons not to seek the death penalty, or, in the alternative, for in-camera review of the death penalty evaluation form; (4) motion to preclude capital sentencing hearing; and (5) motion for discovery to support a motion to strike the death penalty based upon the influence of arbitrary factors of race and gender of victims)10/25/2012Mark W. Bennett
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) 10/23/2012Mark W. Bennett
Earl Foy, Jr. v. United States of America -- Order granting in part and denying in part petitioner's motion for psychological evaluation in a Section 2255 case. Petitioner has shown the necessary good cause to allow the requested discovery. However, the court does not have the authority to compel the Bureau of Prisons to move petitioner to a facility closer to Fort Dodge, Iowa, for purposes of the proposed evaluation. In addition, petitioner's request for advance authorization of payment for the expert's fee must be approved by the Chief Judge of the United States Court of Appeals for the Eighth Circuit because the proposed fee exceeds the cap set forth in the Criminal Justice Act, 18 U.S.C. Section 3006A(e)(3).10/15/2012Leonard T. Strand
United States of America v. Ruben Olivares-Rodriguez -- Report and Recommendation on plaintiff's motion to dismiss defendant's petition for writ of error coram nobis. Court recommended that the motion be denied and the petition re-filed as a motion to vacate, set aside, or correct a federal sentence under 28 U.S.C. section 2255. The defendant is procedurally barred from relief under a coram nobis petition because he is still "in custody" while under supervised release, but his petition may be construed as a section 2255 motion given the alleged errors and requested relief.10/02/2012Leonard T. Strand
USA v. Baisden -- Order granting government's motion for psychiatric examination of defendant. Defendant has pled guilty and has been evaluated by a mental health professional selected by the defense. The defense intends to rely on the professional's opinion as a mitigating factor for sentencing purposes. The government seeks to compel defendant to undergo a second evaluation by an expert selected by the government in order to address and rebut the defense expert's opinion. Defendant correctly notes that this situation does not fall within Federal Rule of Criminal Procedure 12.2. However, the court finds that it has the inherent authority to compel the requested examination and that it is appropriate to do so under these circumstances.08/01/2012Leonard T. Strand
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.(07/02/2012Mark W. Bennett
USA v. Stephenson -- Report and Recommendation denying defendant's motion to suppress statements made to law enforcement while a search warrant was executed at his home. Although the defendant was not Mirandized prior to being questioned, The circumstances show that he was not in custody. As such, the lack of a Miranda warning does not render the statements inadmissible.06/27/2012Leonard T. Strand
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.)05/24/2012Mark W. Bennett
U.S. v. Donald K. Washburn; order denying defendant's motion for judgment of acquittal and motion for new trial. The court found that there was sufficient evidence to support the jury's guilty verdicts as to Counts 1-8, 10-30 and 31-49. The court further found that the interests of justice did not require the court to grant defendant a new trial.05/21/2012Linda R. Reade
USA v. Dodd -- Report and Recommendation on defendant's motion to suppress. In recommending denial of defendant's motion to suppress, Court found defendant's argument that law enforcement lacked probable cause for search warrant to be without merit. Defendant's contention that law enforcement acted unreasonably in relying on second witness' information was without merit.05/15/2012Paul A. Zoss
USA v. Tran -- Report and Recommendation on defendant's motion to suppress. In recommending denial of defendant's motion to suppress, Court found that exigent circumstances justified police officers' entry into defendant's residence after executing arrest warrant on defendant's boyfriend. Police observed marijuana and weapon in plain view in defendant's vicinity. Furthermore, officers had right to conduct protective sweep before obtaining search warrant.05/15/2012Paul A. Zoss
USA v. Malcom -- Report and Recommendation on defendant's motion to suppress. In recommending denial of defendant's motion to suppress, Court found that search warrant affidavit contained ample evidence to support conclusion that defendant possessed contraband. Facts recited in affidavit were sufficient to lead prudent person to believe that there was a fair probability that contraband wold be found in the defendant's home or business. The reasonable inference that defendant would have contraband at his residence or business provided nexus between the items sought in the search warrant and the places to be searched. Alternatively, officers could reasonably rely in good faith on the search warrant issued.05/14/2012Paul A. Zoss
USA v. Gagen -- Report and Recommendation on defendant's motion to suppress. In recommending granting in part and denying in part defendant's motion to suppress, Court found that defendant was not in custody when he made voluntary statements during interview with state parole officer and deputy sheriff, so Miranda warnings were not required. Furthermore, Court found that defendant was not in custody after subsequent traffic stop by deputy sheriff until sheriff arrested and handcuffed defendant for possessing methamphetamine. Miranda warnings by sheriff thus were not required until defendant was under arrest.05/10/2012Paul A. Zoss
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)05/01/2012Mark W. Bennett
USA v. Murillo-Figueroa -- Report and Recommendation on defendant's motion to suppress. In recommending denial of defendant's motion to suppress, Court found that probable cause did not justify traffic stop based on multiple air fresheners' purported obstruction of driver's view. Court found, however, that probable cause or at least a reasonable suspicion justified stop based on circumstances leading up to stop.04/27/2012Paul A. Zoss
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). 04/10/2012Mark W. Bennett
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)04/05/2012Mark W. Bennett
USA v. Quintero-Felix -- Report and Recommendation on defendant's motion to suppress. In recommending defendant's motion to suppress be denied, court found that, once officer had probable cause for traffic stop, placing defendant in police cruiser while conducting records check was not unlawful detention. Defendant was not seized after officer completed writing traffic warning, at which point defendant's encounter with police was consensual. Officer also had reasonable suspicion of criminal activity to justify further detention.04/03/2012Paul A. Zoss
USA v. Jocol-Alfaro and USA v. DeLeon-Ochoa -- Order on detention. Court held risk that defendants might possibly be deported before facing trial on federalc hages was not determinative of their eligibility for pretrial release and that determination had to be made on factors enumerated in 18 USC 3142.10/31/2011Paul A. Zoss
USA v. Amaya -- Order denying defendant Angel Amaya's motion to strike and/or motion to withdraw, denying as moot defendant Javier Amaya's motion to compel disclosure of identity of source of information, and denying Javier Amaya's motion for a bill of particulars and motion to sever. Report and recommendation recommending denial of Javier Amaya's motion to dismiss Count 2 of the superseding indictment or to strike superfluous language and motion to dismiss Count 1 of the superseding indictment. First, the court did not find that Angel Amaya's counsel's previous representation of government witness created conflict; in any event, government witness and defendant were willing to waive any conflict. Second, the government revealed at the hearing the identity of the source of information; therefore, defendant Javier Amaya's motion to compel disclosure was moot. Third, Javier Amaya's motion for a bill of particulars was not appropriate method to contest sufficiency of the evidence on Count 2. Fourth, Javier Amaya did not show serious prejudice from joinder with co-defendants that would warrant severance. Further, Javier Amaya's motiosn to dismiss Count 2 because of vague or superfluous language and to dismiss Count 1 because of "inextricable entanglement" with Count 2 so as to confuse the jury were without merit and should be denied. 10/03/2011Paul A. Zoss
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. 09/06/2011Mark W. Bennett
USA v. Lindgren -- Report and Recommendation on defendant's motion to suppress statements. In recommending defendant's motion to suppress be denied, court found that, under Eighth Circuit jurisprudence, defendannt was not in custody at the time he made his statements. Failure to give defendant Miranda warnings thus did not require suppression of his statements.08/25/2011Paul A. Zoss
USA v. Amaya -- Report and Recommendation on defendant's motion to suppress evidence seized (1) pursuant to a search warrant of his residence; (2) during a consent search of his parents' trailer; and (3) during a search of his vehicle. The affidavit submitted contained information from a cooperating source that was corroborated by officers' search of defendant's trash at his residence and by evidence seized at a traffic stop of the defendant's vehicle. The defendant offered no evidence under Franks v. Delaware that the affiant intentionally or recklessly omitted from the affidavit information that would have been clearly critical to a finding of probable cause. The defendant did not have standing to challenge the search of his parents' trailer; in any event, the search of the trailer did not follow from anything seized pursuant to the search warrant. Court recommended denying suppression of items seized from the defendant's vehicle at the time of his arrest because the defendant failed to state any grounds to support suppression and because no evidence seized from the vehicle would be offered at trial. 08/25/2011Paul A. Zoss
USA v. Lara-Pantoja -- Report and Recommendation on defendant's motions to suppress his post-Miranda statementand his stop, search, and detention, and on defendant's motion to suppress his statements, finding that some of defendant's post-Miranda statements were made involuntarily. Court recommended denying defendant's motions to suppress his stop, search, and detention because probable cause existed for the police officer's stop of defendant's vehicle and because the inventory search of defendant's vehicle after his arrest complied with the police department's impoundment and inventory policy. Court recommended denying defendant's motion to dismiss the indictment.08/02/2011Paul A. Zoss
USA v. Kristen McCoy and Todd Reynolds -- Report and Recommendation on defendants' motion to suppress evidence. In recommending defendants' motion to suppress be denied, court found that the search warrant to search defendants' residence was supported by probable cause based on items seized during a traffic stop. Defendants did not demonstrate that the affidavit in support of the search warrant was false or that the magistrate who issued the warrant did not have authority to issue a warrant for a search of property in another county.04/21/2011Paul A. Zoss
USA v. Corona-Torres - Report and Recommendation on defendant's motion to suppress drug evidence found during a search of defendant's vehicle at a traffic stop. In recommending defendant's motion to suppress be granted, court found officers had neither probable cause to believe that defendant had unlawfully stopped on a highway nor reasonable suspicion that defendant had unlawfully thrown trash on a highway that justified the stop of the vehicle. Although defendant consented to the vehicle search, his consent did not purge the taint of the illegal stop.04/20/2011Paul A. Zoss
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))04/07/2011Mark W. Bennett
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.)02/08/2011Mark W. Bennett
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.)02/08/2011Mark W. Bennett
USA v. Charles -- Order denying defendant's motion to sever. Court found defendant had failed to show he would be sufficiently prejudiced by trial with co-defendants in this drug conspiracy case.12/21/2010Paul A. Zoss
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) 11/24/2010Mark W. Bennett
USA v. Martinez-Rodriguez. Report and Recommendation on motion to suppress evidence. Defendant, who was visibly impaired by alcohol or other drugs at time of questioning, failed to show his will was overborne, and court found his waiver of Miranda rights was knowing, voluntary, and intelligent11/01/2010Paul A. Zoss
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)10/19/2010Mark W. Bennett
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. )10/18/2010Mark W. Bennett
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))10/04/2010Mark W. Bennett
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)09/27/2010Mark W. Bennett
United States of America v. McManaman -- Report and Recommendation on defendant's motion to suppress. In recommending defendant's motion to suppress be denied, court found probable cause existed for issuance of a search warrant for guns, drugs, and related items, and evidence of child pornography inevitably would have been discovered during any search pursuant to the warrant.09/14/2010Paul A. Zoss
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) 09/07/2010Mark W. Bennett
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) 08/06/2010Mark W. Bennett
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.)07/29/2010Mark W. Bennett
U.S. v. Sholom Rubashkin; sentencing memorandum06/21/2010Linda R. Reade
USA v. Hulstein -- Order granting defendant's motion to take trial deposition by telephone.06/03/2010Paul A. Zoss
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.)05/11/2010Mark W. Bennett
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) 05/11/2010Mark W. Bennett
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)05/10/2010Mark W. Bennett
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. 04/28/2010Mark W. Bennett
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) 04/22/2010Mark W. Bennett
USA v. Villanueva-Martinez -- Order on detention. Court held risk that defendant might possibly be deported prior to facing trial on federal charges was not determinative of his eligibility for pretrial release, and determination had to be made based on factors enumerated in 18 USC 3142.04/22/2010Paul A. Zoss
USA v. Moes -- Report and Recommendation on defendant's motion to dismiss indictment charging him with failure to register as a sex offender. Court found the case turned on a factual issue that must be decided by the jury at trial; i.e., whether the defendant "resided" in Iowa.04/14/2010Paul A. Zoss
USA v. Peter Hanson -- Order denying defendant's motion for severance. Court found Bruton issue to be moot, and found defendant had failed to show prejudice from joint trial with co-defendants.04/12/2010Paul A. Zoss
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) 04/07/2010Mark W. Bennett
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)04/06/2010Mark W. Bennett
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) 04/02/2010Mark W. Bennett
United States v. Riesselman -- Amended Report and Recommendation on defendant's motion to suppress drugs and cell phone found on his person during a pat-down search, evidence seized during execution of a search warrant, and statements he gave to officers at the scene. Government agreed pat-down search exceeded permissible scope under the circumstances, and court recommended drugs and cell phone be suppressed. On other issues, court found defendant never invoked his right to counsel; failure to give defendant complete copy of search warrant, including attachment that described items to be searched, was not deliberate and did not require suppression of evidence where defendant failed to show prejudice; although defendant's statements regarding illegally-seized drugs and cell phone were fruit of the illegal search, statements were sufficiently attenuated to purge the taint; and defendant's other statements were voluntary and did not flow from illegal seizure of items from defendant's person.03/31/2010Paul A. Zoss
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.)03/31/2010Mark W. Bennett
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) 03/29/2010Mark W. Bennett
USA v. Ruben Olivares-Rodriguez -- Report and recommendation on motion to suppress evidence arising from search of vehicle by a certified drug detection dog. Court found dog was reliable, and his handler reasonably believed the dog had indicated on the vehicle, providing probable cause to search the vehicle's interior. Court further found testimony of defense witness Steven Nicely was entitled to no weight.03/22/2010Paul A. Zoss
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.)03/19/2010Mark W. Bennett
Redd v. McKinney -- Report and Recommendation on petition for writ of habeas corpus under 28 USC Section 2254. Court found petitioner failed to show Iowa court's decisions were unreasonable in finding his trial and appellate counsel were not ineffective for failing to lodge proper objections to admission of certain evidence at trial. 03/16/2010Paul A. Zoss
USA v. Riesselman -- Report and Recommendation on defendant's motion to suppress drugs found in his pocket during a pat-down search, evidence seized during execution of a search warrant, and a statement he gave to officers at the scene. Government agreed pat-down search exceeded permissible scope under the circumstances, and court recommended drugs be suppressed. On other issues, court found defendant never invoked his right to counsel; failure to give defendant complete copy of search warrant, including attachment that described items to be searched, was not deliberate and did not require suppression of evidence where defendant failed to show prejudice; and defendant's statement was voluntary and did not flow from illegal seizure of drugs from defendant's pocket. 03/16/2010Paul A. Zoss
U.S. v. Thomas J. Woods; sentencing memorandum regarding restitution to victim of child pornography offenses03/03/2010Linda R. Reade
U.S. v. Sholom Rubashkin; Order denying defendant's motion for judgment of acquittal and motion for new trial03/01/2010Linda R. Reade
USA v. Harrington -- Report and Recommendation on defendant's motion to suppress. Court found officers' encounter with defendant was completely consensual; officers did not initiate a "stop" of defendant; and defendant was coherent and able to consent to be interviewed.02/16/2010Paul A. Zoss
USA v. Hanson -- Report and Recommendation on defendant's motion to suppress evidence found during search of vehicle at site of traffic stop. Court found officer's continued detention of defendant after conclusion of traffic stop for further investigation of suspected drugs in vehicle was based on officer's reasonable suspicision and did not violate defendant's Fourth Amendment rights.02/01/2010Paul A. Zoss
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))01/12/2010Mark W. Bennett
USA v. Rojas - Report and Recommendation that defendant's motion to dismiss indictment for insufficiency of evidence before the grand jury be denied.12/02/2009Paul A. Zoss
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.)11/17/2009Mark W. Bennett
USA v. Stephens -- Order denying Government's motion to amend conditions of pretrial release to include electronic monitoring and curfew. Court found unconstitutional the Adam Walsh Act amendments to the Bail Reform Act requiring mandatory imposition of curfew and electronic monitoring without an individual determination of whether the facts of the case required those conditions of pretrial release.10/27/2009Paul A. Zoss
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.10/15/2009Mark W. Bennett
USA v. Graham -- Report and Recommendation on defendant's motion to suppress evidence found during execution of a search warrant at his residence. Court found there was sufficient probable cause to issue the warrant and sufficient indicia of validity for the executing officers to rely on the warrant, and the warrant adequately described the places to be searched.09/28/2009Paul A. Zoss
USA v. Martinez-Pena -- Report and Recommendation on defendant's motion to suppress drug evidence found in his vehicle. Defendant was stopped for speeding. He was cited for driving without a license, and vehicle was seized to install a tracking device pursuant to a warrant. While installing the device, officers found drugs in the vehicle. Court found drugs were not in plain view, and warrantless seach of vehicle violated defendant's Fourth Amendment rights. However, court further found drugs inevitably would have been discovered during inventory search of vehicle and need not be suppressed. 09/23/2009Paul A. Zoss
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.)09/09/2009Mark W. Bennett
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.)08/28/2009Mark W. Bennett
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) 08/24/2009Mark W. Bennett
USA v. Yockey -- Report and Recommendation on defendant's motion to suppress evidence located on, and stemming from, the discovery of child pornography on his cell phone at the time he was booked into the jail for driving while suspended. Court found discovery of pornographic image by inentorying officer was inadvertent; arresting officer's examination of additional photographs on the phone and questioning of defendant before giving Miranda warnings was unlawful; and detective's questioning of defendant after Miranda warnings and examination of phone's contents with defendant's consent would have occurred solely on the basis of the single photo inadvertently accessed by inventorying officer and therefore need not be suppressed. 08/03/2009Paul A. Zoss
USA v. Mosley -- Report and Recommendation on defendant's motion to suppress statements made when officers arrived to execute a search warrant at his house. Court found that under Eighth Circuit jurisprudence, defendant was not "in custody" at the time he made his statements, and therefore failure to give him Miranda warnings did not require suppression of his statements.07/27/2009Paul A. Zoss
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) 06/26/2009Mark W. Bennett
U.S. v. Kevin Kruse; Defendant who pled guilty to one count of aggravated sexual abuse of a minor sentenced to 470 months of imprisonment after applying 2G2.1 and 4B1.5.05/26/2009Linda R. Reade
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) 05/18/2009Mark W. Bennett
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)05/11/2009Mark W. Bennett
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) 04/15/2009Mark W. Bennett
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) 02/24/2009Mark W. Bennett
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.)02/23/2009Mark W. Bennett
U.S. v. Heather Fiorella a/k/a Heather Gonsorcik; Defendant who pled guilty to three counts of possession of child pornography sentenced to 360 months' imprisonment after district court found she obstructed justice and upheld USSG 2G2.1 against Kimbrough v. United States, 128 S. Ct. 558 (2007) challenge.02/11/2009Linda R. Reade
USA v. Haltiwanger -- Report and Recommendation on defendant's objection to Government's 851 notice. Interpreting Kansas sentencing guideline scheme applicable to drug tax stamp violation, court found maximum term to which defendant could have been sentenced was seven months, rather than the thirteen months applicable to defendants in higher criminal history categories, and therefore defendant's conviction under the Kansas drug tax stamp law did not qualify as a prior felony confiction for purposes of a federal sentence enhancement.02/11/2009Paul A. Zoss
USA v. Gregg -- Report and Recommendation on petition to revoke the defendant's term of supervised release.02/04/2009Paul A. Zoss
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.)02/02/2009Mark W. Bennett
US v. Daniel Lee Wilson -- R&R; Motion to Suppress-Issues: Fourth Amendment: Entry onto Curtilage, Entry into Porch01/14/2009Jon Stuart Scoles
US v. Lesean D. Hardy -- R&R; Motion to Suppress-Issues: Legality of Pat-Down Search, Fruit of the Poisonous Tree Analysis01/05/2009Jon Stuart Scoles
US v. Edward Frank Brewer & Rosina Orlantha Rhodes -- R&R; Motions to Suppress-Issues: Fourth Amendment: Traffic Stop; Fifth Amendment: Voluntary Statements01/05/2009Jon Stuart Scoles
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”) 12/26/2008Mark W. Bennett
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) 11/25/2008Mark W. Bennett
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) 10/31/2008Mark W. Bennett
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) 10/31/2008Mark W. Bennett
USA v. Maul -- Report and Recommendation on defendant's motion to suppress evidence. Court found officer had probable cause to conduct traffic stop, reasonable suspicion to detain vehicle's occupants for further investigation after traffic stop was concluded, and authority to remove occupants from vehicle for purposes of exterior K-9 sniff of the vehicle.10/30/2008Paul A. Zoss
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) 10/24/2008Mark W. Bennett
USA v. Thies -- Report and Recommendation, recommending defendant's motion to suppress evidence be denied. Defendant's girlfriend, with whom he lived, called police to report that defendant was drunk and acting violently, and she was frightened because he had a gun in the house. Officer went to the house to investigate, with intent to seize the firearm for the parties' and the public's safety. He encountered defendant and some friends in the front yard of the residence. He asked defendant a few questions before arresting defendant on an outstanding warrant. He then entered the house, over defendant's objections, to secure the firearm, and while inside, noticed some live ammunition. After learning defendant had a prior felony conviction, officer secured a search warrant for the house and seized the ammunition and other evidence. Court found defendant's responses to initial questions were noncustodial and need not be suppressed; officer's initial entry into the house to retrieve the gun was lawful; and even if initial entry into the house was not lawful, gun and ammunition inevitably would have been discovered.10/23/2008Paul A. Zoss
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) 10/21/2008Mark W. Bennett
USA v. Huntley -- Report and Recommendation on motion to dismiss indictment. Court found defendant who receives firearm in trade for drugs does not possess the firearm in furtherance of a drug trafficking crime in violation of 18 USC 924(c), but recommended the motion be denied as premature.10/21/2008Paul A. Zoss
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) 10/02/2008Mark W. Bennett
U.S. v. Sean Merrill; court held that child pornographer was not subject to sentencing enhancement for distribution, where defendant did not disseminate child pornography to others but instead only moved it from one electronic device to another09/26/2008Linda R. Reade
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) 09/24/2008Mark W. Bennett
U.S. v. Mack Davis; court held defendant was career offender, based in part upon prior conviction for Indecent Contact With a Child, in violation of Iowa Code Section 709.12(4) (1993)09/17/2008Linda R. Reade
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.)09/16/2008Mark W. Bennett
Jones v. Wilder-Tomlinson (Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254; petitioner claims that her Sixth Amendment rights were violated when neither of her two attorneys filed a timely motion to suppress evidence obtained due to her warrantless arrest; the court decided: whether there had been an adjudication on the merits of the probable cause to arrest claim, whether the petitioner had properly exhausted available state remedies, and whether one or both of petitioner’s attorneys had been ineffective in violation of the Sixth Amendment.)09/04/2008Mark W. Bennett
USA v. Huntley -- Report and Recommendation on defendant's motion to dismiss. Defendant was convicted by a jury of a firearms violation and appealed. Appellate court reversed due to erroneous jury instruction. On remand, government dismissed, and then re-indicted defendant one day later. Defendant argued reprosecution violated his fifth amendment protection against double jeopardy. Court recommended motion be denied based on Supreme Court precedent holding Double Jeopardy Clause does not bar reprosecution of a defendant whose conviction is overturned on appeal due to a trial error, rather than for insufficiency of evidence.09/02/2008Paul A. Zoss
United States v. Mishan Bradford (R&R--Motion to Suppress (Fourth Amendment; Warrantless Search)08/12/2008Jon Stuart Scoles
USA v. Godfrey -- Report and Recommendation on motion to suppress statements defendant made to agents who questioned him at his home. Court found defenadnt's sixth amendment right to counsel had not attached where defendant had not been charged or arrested and was not in custody at time of interview. Defendant was not entitled to Miranda warnings prior to the non-custodial interview, and defendant's statements were not coerced.08/11/2008Paul A. Zoss
USA v. Stangeland -- Supplemental Report and Recommendation on defendant's motion to dismiss with prejudice for speedy trial violation. Court reviewed dismissal of prior case pursuant to the factors set forth in 18 USC 3162, and concluded dismissal without prejudice was proper. Defendant failed to show constitutional violation under Barker v. Wingo factors. 07/29/2008Paul A. Zoss
USA v. Puok -- Order on Government's motion to compel defense to produce summaries of expert testimony. Court overruled defendant's interpretation of standard Stipulated Discovery Order, holding production of expert witness summaries is required by the stipulation without any notice or request from either party.07/25/2008Paul A. Zoss
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) 07/23/2008Mark W. Bennett
U.S. v. Orlando Birbragher, Marshall Neil Kanner, Douglas Willis Bouchey, Armando Angulo and Peter Colon Lopez; order on motion to dismiss07/22/2008Linda R. Reade
USA v. Kenison -- Report and Recommendation on motion to suppress evidence. Court found defendant had failed to make a preliminary showing that information was omitted from search warrant application recklessly, deliberately, or intentionally, and therefore defendant was not entitled to a Franks hearing.07/21/2008Paul A. Zoss
USA v. Ortega-Morgado --Report and Recommendation on defendant's motion to dismiss for speedy trial violation. Parties agreed the indictment should be dismissed, but disagreed on whether dismissal should be with or without prejudice. After weighing factors in 18 USC 3162(a)(1), court recommended dismissal be with prejudice.07/18/2008Paul A. Zoss
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) 07/16/2008Mark W. Bennett
U.S. v. Roger Waldner; court sentenced defendant to 120 months imprisonment on his pleas of guilty to two counts of bankruptcy fraud, arising out of In Re H & W Motor Express Co, No. 02-2017 (Bankr. N.D. Iowa Jun. 12, 200207/07/2008Linda R. Reade
USA v. Stangeland -- Report and Recommendation on defendant's motion to dismiss. Defendant was indicted, but no trial was scheduled. Court dismissed indictment sua sponte for speedy trial violation, and Government then obtained a new indictment. Defendant moved to dismiss, arguing that because the first indictment was dismissed other than on his own motion, the speedy trial clock continued to run. Court found Defendant was beneficiary of the sua sponte dismissal, and the speedy trial clock began to run anew with the second indictment.06/11/2008Paul A. Zoss
USA v. McManaman -- Report and Recommendation on defendant's motion to suppress evidence. Court found a Sixth Amendment violation where officers asked defendant a question after he had been indicted and taken into custody but before he had been advised of his rights, and recommended suppression of defendant's response to the question. However, court found firearm located as a result of that response inevitably would have been discovered, and therefore it need not be suppressed, nor did the constitutional violation require suppression of defendant's post-Miranda statements made several hours after his arrest.06/09/2008Paul A. Zoss
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.)05/14/2008Mark W. Bennett
US v. Fundermann -- Report and Recommendation on defendant's motion to suppress evidence found during and as a result of traffic stop. Court found traffic stop was valid; search of vehicle was supported by probable cause; and subsequent search warrant issued on basis of evidence found during traffic stop also was supported by probable cause.05/08/2008Paul A. Zoss
USA v. Daniel Binion--R&R (motions to suppress evidence-4th Amendment [probable cause for traffic stop and pat-down search] & 5th Amendment [voluntary statement made after refusal to waive Miranda rights])05/06/2008Jon Stuart Scoles
U.S. v. Lamont William Papakee; court's sentencing memorandum; court held that sexual abuse in Indian Country is a crime of violence for purposes of career offender finding and held alternative variance permissible after Gall v. United States04/24/2008Linda R. Reade
USA v. Thomas Ray Reinhart (R&R on motion to suppress--entry into 3rd-party residence on arrest warrant, protective sweep, Franks hearing, Leon good-faith exception)04/08/2008Jon Stuart Scoles
US v. Jon Young (R&R on Motion to Suppress--request for counsel)04/03/2008Jon Stuart Scoles
USA v. Douglas Johnson --Report and Recommendation on defendant's motions to suppress evidence seized from execution of two separate search warrants. Court found the first warrant application to be deficient, and so much so that the court held the Leon exclusionary rule should apply to the evidence seized in execution of the warrant. Court found the second warrant contained sufficient information to support the magistrate's probable cause determination, and further found that in any event, the officers' reliance on the warrant was reasoanble and in good faith.04/01/2008Paul A. Zoss
U.S. v. Ronald Coleman; sentencing memorandum holding that defendant's prior Iowa conviction for drug tax stamp violation was a prior felony drug conviction for purposes of 21 U.S.C. §§841 & 85104/01/2008Linda R. Reade
USA v. Vo -- Order denying motion to sever. Defendant charged with conspiracy to manufacture and distribute marijuana and money laundering moved for severance from co-defendants charged with continuing criminal enterprise and other crimes. Court found joinder was proper, and defendant failed to show he would suffer serious prejudice from joinder of his case for trial with his co-defendants.03/10/2008Paul A. Zoss
US v. John Bolden, Zechariah Benjamin, Nell Brocks, Clarence Ross, III, & Wilson Cleaves (Motion to Sever--Bruton issue)03/07/2008Jon Stuart Scoles
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.)02/25/2008Mark W. Bennett
USA v. Tony Eugene Goodson (R&R on motion to withdraw guilty plea)02/19/2008Jon Stuart Scoles
U.S. v. Chris Pipkin; ordering defendant to make restitution despite an order of discharge over the restitution in bankruptcy court02/19/2008Linda R. Reade
U.S. v. Charles Thomas; order regarding constitutionality of the sex offender registration provisions of the Adam Walsh Act02/13/2008Linda R. Reade
U.S. v. Charles Warthan; sentencing memorandum opinion; court calculated defendant's advisory Sentencing Guidelines range. Minor role adjustment did not apply, upward departure for number of victims applied, downward departure for discharged term of imprisonment did not apply.02/07/2008Linda R. Reade
USA v. Edmond Louis Cote (R&R on motion to suppress evidence (probable cause determination supported by affidavit and sworn oral testimony, Leon good-faith exception)02/06/2008Jon Stuart Scoles
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.)02/01/2008Mark W. Bennett
USA v. Mack Arthur Davis, Jr. (Report and Recommendation on motion to suppress statements--voluntary waiver of Miranda rights and voluntary statement to police)01/16/2008Jon Stuart Scoles
USA v. John Anthony Echols, Jr. (motion to set aside section 851 notice)01/15/2008Jon Stuart Scoles
USA v. Ingram -- Report and Recommendation on defendant's motion to suppress. Court found officer's pre-Miranda question at scene of traffic stop regarding whether defendant had anything in his possession that would get him into trouble was not a custodial inquiry and did not violate defendant's Miranda rights. Court further found search warrant was supported by probable cause.11/28/2007Paul A. Zoss
USA v. Webb - Report and Recommendation on defendant's motion to dismiss indictment charging him with possession of a firearm after previously being convicted of a "misdemeanor crime of domestic violence." Court found question was for the jury as to whether defendant's conduct leading to the state conviction involved the requisite "physical force" to constitute a predicate offense for a conviction under 18 USC 922(g)(9).11/09/2007Paul A. Zoss
USA v. Howell -- Report and Recommendation on defendant's motion to dismiss indictment charging violations of Sex Offender Registration and Notification Act, 42 USC 16901 et seq. and 18 USC 2250. Held: (1) SORNA was not applicable to sex offender with pre-SORNA convition until issuance of Attorney General's interim rule on 2/28/07; (2) application of SORNA to conduct predating the interim rule would violate the Ex Post Facto Clause of the Constitution; (3) SORNA does not violate the non-delegation doctrine or the Commerce Clause; (4) application of SORNA to defendant would not violate due process; and (5) proper venue for SORNA violation is fact-based and represents jury question for trial. 11/08/2007Paul A. Zoss
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)10/25/2007Mark W. Bennett
U.S. v. Mark Donisi : (criminal defendant’s motion in limine: prior drug use and evidence from his proffer interview)09/25/2007Mark W. Bennett
USA vs. John Shuler and Heather Fiorella (Report and Recommendation on motion to suppress, search of residence)09/18/2007Jon Stuart Scoles
USA v. Plum -- Order granting motion for involuntary administration of psychotropic drugs to render defendant competent for trial. Court found the Government had proved all four of the Sell factors.08/29/2007Paul A. Zoss
USA v. McMullin -- Report and Recommendation on motion to dismiss for pre-indictment delay, and motion to dismiss one count of indictment for violating defendant's right against double jeopardy. Court found defendant failed to show delay in filing indictment resulted in actual and substantial prejudice to presentation of his defense, or that government intentionally delayed the indictment to gain tactical advantage or to harass him. On second motion, court held 21 USC 841(c)(2) is a lesser included offense of 21 USC 841(c)(1), so that although trying defendant on both charges does not violate double jeopardy, defendant could not be convicted and punished for both offenses. 08/28/2007Paul A. Zoss
USA v. McMullin - Order denying defendant's motion for severance. Court found defendant filed to show he would suffer "real prejudice" from joint trial.08/28/2007Paul A. Zoss
USA vs. Robert Earl Cole, Jr. (Report and Recommendation on motion to suppress; seizure, voluntary consent urine sample)08/20/2007Jon Stuart Scoles
USA v. Sheridan -- Report and Recommendation on defendant's motion to suppress. In recommending denial of motion, court found defendant's nephew, who was working as a security guard at resort, entered defendant's room as a private citizen on his own behalf; and not on behalf of, or with knowledge of and acquiescence by, any government agency.08/15/2007Paul A. Zoss
USA v. Gocha -- Supplemental Report and Recommendation on defendant's motion to suppress. Court found probable cause existed for issuance of second and third warrants to search defendant's computers, digital cameras, personal data device, and storage media. Court further found search warrants met particularity requirement and were not overly broad. 08/10/2007Paul A. Zoss
U.S. v. Angela Johnson (8th Circuit Decision)07/30/2007Mark W. Bennett
USA v. Jeff Cheney -- Report and Recommendation on defendnat's objections to plaintiff's notice of intent to seek enhanced penalties pursuant to 21 USC 851.07/27/2007Paul A. Zoss
U.S. v. Linda Darcell Gilbert; sentencing memorandum opinion07/24/2007Linda R. Reade
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.)07/17/2007Mark W. Bennett
USA vs. Brook Allen Walton (Report and Recommendation on motion to suppress--Franks case)07/09/2007Jon Stuart Scoles
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.)07/09/2007Mark W. Bennett
United States v. Abdel-Ilah Elmardoudi; motion to dismiss on due process grounds; denying defendant's motion; finding no Fifth Amendment violations due to outrageous government conduct or prosecutorial misconduct; declining defendant's invitation to use the court's supervisory power to dismiss the two-count indictment. 07/05/2007Linda R. Reade
United States v. Abdel-Ilah Elmardoudi; motion to dismiss pursuant to Rule 48(b); denying defendant's motion; finding no prejudicial preindictment delay in the government's presentation of the charges to the grand jury; and finding no unnecessary post-indictment delay due, mainly, to defendant's own requests for trial continuances. 07/05/2007Linda R. Reade
United States v. Abdel-Ilah Elmardoudi; motion to dismiss on double jeopardy grounds; denying defendant's motion; finding that the double jeopardy principles were not implicated because defendant was convicted in the Eastern District of Michigan on a terrorism count and a document fraud count, and then, after trial, the charges were dismissed in post-trial proceedings; alternatively holding that the offenses in the prior indictment and the instant indictment were not the "same" for purposes of the Double Jeopardy Clause. 07/05/2007Linda R. Reade
U.S. v. Robert Earl Cole; sentencing memorandum opinion07/03/2007Linda R. Reade
USA v. Gocha -- Report and Recommendation on motion to suppress evidence from search of residence and shop building. Court found unrelated attachment to search warrant was included inadvertently and was not considered by magistrate in issuing warrant; defendant failed to make requisite showing to warrant a Franks hearing; and officers reasonably believed cohabitant of property had authority to consent to search of entire property. 07/03/2007Paul A. Zoss
United States v. Abdel-Ilah Elmardoudi; motion to subpoena trial witnesses pursuant to Rule 104; denying defendant's motion; determining that the proposed testimony of a district court judge, a United States Attorney and a defense attorney was not admissible; and declining to issue trial subpoenas for each. 06/27/2007Linda R. Reade
U.S. v. James Howard Bentley; sentencing memorandum opinion06/25/2007Linda R. Reade
USA v. Quiroga -- Report and Recommendation on motion to suppress evidence. Court found officers had probable cause for defendant's warrantless arrest, and recommended evidence from search incident to arrest not be suppressed.06/13/2007Paul A. Zoss
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)06/12/2007Mark W. Bennett
USA v. O'Connor- Report and Recommendation that defendant's motion to suppress be denied. Defendant argued search warrant for his residence was not supported by probable cause because the facts indicated his alleged activities only occurred at his workplace, not at his residence. Court found issuing judge was entitled to rely on officer's experienced opinion that defendant likely maintained pornographic images and performed illegal acts at his residence.06/11/2007Paul A. Zoss
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)).05/31/2007Mark W. Bennett
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”)05/17/2007Mark W. Bennett
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.) 05/16/2007Mark W. Bennett
U.S. v. Michael Edward Kowal; order on motion to dismiss, bench trial and motion for judgment of acquittal. The court denied the motion to dismiss and motion for judgment of acquittal, and it found defendant GUILTY on Counts 5 and 7, which charged the defendant with aggravated identity theft in violation in 18 U.S.C. § 1028A(a)(1). The court found that the term "person" in § 1028A(a)(1) includes all human beings, regardless of whether they are living at the time their identity is stolen and used. It found that the defendant's use of a decedent's surname and birth month constituted the defendant's use of the "means of identification of another person," and it rejected the defendant's claim that he changed his name through his Iowa marriage.05/15/2007Linda R. Reade
U.S. v. David Evan Starr; sentencing memorandum opinion05/15/2007Linda R. Reade
USA v. Charles Scott -- Report and Recommendation on defendant's motion to suppress evidence. Court found defendant had not made adequate showing for a Franks hearing, and even if affidavit in support of search warrant was deficient, officers executed the warrant in good faith and evidence should not be excluded pursuant to Leon.05/08/2007Paul A. Zoss
United States of America v. Arias-Gonzales -- Report and sua sponte recommendation that case be dismissed for speedy trial violation.05/02/2007Paul A. Zoss
U.S. v. Lamont William Papakee and Connie Frances Blackcloud; order finding federal criminal jurisdiction over alleged sex crimes at Meskwaki Settlement05/02/2007Linda R. Reade
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)04/30/2007Mark W. Bennett
USA v. Marsh -- Order on motion for extension of time to complete psychological evaluation. Discusses date when time commences for completion of evaluation.03/29/2007Paul A. Zoss
USA v. Cobb -- Report and Recommendation that defendant's motion to suppress evidence resulting from search of his residence be granted. Court found officers recklessly included false information in warrant affidavit, and when false information was excluded, information in the affidavit would not support a finding of probable cause for a search of defendant's residence. Court further found inevitable discovery exception inapplicable on these facts.03/27/2007Paul A. Zoss
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)03/23/2007Mark W. Bennett
USA v. Eddie Lee -- Order denying defendant's motion to sever his trial from the trial of his codefendants in case involving conspiracy to manufacture nd distribute crack cocaine.03/13/2007Paul A. Zoss
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)02/28/2007Mark W. Bennett
USA v. Enrique Aragon-Hernandez -- Order denying defendant's motion for bill of particulars.02/27/2007Paul A. Zoss
U.S. v. James Howard Bentley; Rule 414 order, admitting evidence of prior offenses of child molestation in child pornography prosecution.02/21/2007Linda R. Reade
USA v. Huntley -- Report and recommendation on defendant's motion to dismiss two counts of indictment. Defendant argued his plea in state court to simple assault under Iowa Code 708.1(1) and 708.2(4) did not satisfy predicate requirements for federal charges of possessing firearm after misdemeanor conviction of domestic violence. In recommending defendant's motion to dismiss be denied, Court found State court judgment established, on its face, the required predicate element of the charges.02/20/2007Paul A. Zoss
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 )02/14/2007Mark W. Bennett
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. )02/07/2007Mark W. Bennett
U.S. v. Enrique Aragon-Hernandez (criminal defendant’s motion in limine: inaudibility of recordings rendering them untrustworthy as a whole and, therefore, inadmissible) 01/31/2007Mark W. Bennett
United States v. Abdel-Ilah Elmardoudi; motion to dismiss on statute of limitations and pre-indictment delay grounds; denying defendant's motion; holding that the conspiracy to commit document fraud charge and the fraudulent use of a social security number charge in the indictment were not barred by the statute of limitations; and holding that there was no violation of the Fifth Amendment due process clause due to unreasonable pre-indictment delay because defendant could not show actual or substantial prejudice. 01/22/2007Linda R. Reade
USA v. Bauer -- Report and recommendation that defendant's motion to suppress evidence from traffic stop be denied. Court found defendant consented to search of his vehicle, his consent was not coerced by officers, and "plain view" doctrine was irrelevant to the analysis.01/22/2007Paul A. Zoss
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.)01/05/2007Mark W. Bennett
USA v. Bucio-Sanchez -- Report and recommendation that motion to suppress evidence be denied. Court found inevitable discovery doctrine justified admission of call made to defendant's c ell phone; protective sweep of trailer was justified under the circumstances, and evidence observed in plain view during protective sweep was admissible; and roommate had authority to consent to search of all of trailer except defendant's bedroom.01/03/2007Paul A. Zoss
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)).12/27/2006Mark W. Bennett
U.S. v. B.H.; declaratory judgment finding that defendant was committed to a mental institution and, therefore, ordering his weapons and ammunition destroyed.,U.S. v. B.H.; declaratory judgment finding that defendant was committed to a mental institution and, therefore, ordering his weapons and ammunition destroyed.12/07/2006Linda R. Reade
USA v. Tolbert - Report and recommendation on defendant's motion to suppress. Court found evidence was sezied lawfully at scene of traffic stop and need not be suppressed; defendant's pre-Miranda statements were custodial in nature and should be suppressed; and defendant later waived rights and gave statements voluntarily and intelligently, so post-Miranda statements need not be suppressed. 12/04/2006Paul A. Zoss
U.S. v. James Joseph Sheridan; Court denied defendant's motion to dismiss a one-count indictment which charged defendant with knowingly possessing a stolen firearm, in violation of 18 U.S.C. § 922(j). The court concluded that defendant's Fifth Amendment right to due process right was not violated. It found there was no vindictive prosecution or unreasonable pre-indictment delay. 11/16/2006Linda R. Reade
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.)11/13/2006Mark W. Bennett
US v. Bradford; sentencing memorandum opinion on plea of guilty to conspiracy to distribute heroin, upward departure imposed because, during the conspiracy, defendant also sold heroin resulting in death11/08/2006Linda R. Reade
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.) 11/01/2006Mark W. Bennett
USA v. Huang and Long -- Report and recommendation on motion to suppress physical evidence. Court found probable cause existed to support issuance of four warrants challenged by defendants, and recommended motion to suppress be denied.10/31/2006Paul A. Zoss
USA v. Donisi - Report and recommendation that motion to suppress evidence be denied. Court found affidavit in support of search warrant application contained facts sufficient to provide probable cause for issuance of warrant.10/27/2006Paul A. Zoss
USA v. Becker -- Report and recommendation that motions to suppress evidence and statements be denied. Court found defendant's state probation officer had reasonable suspicion to search defendant's house pursuant to probation agreement when defendant associated with known drug user who had recent arrests, defendant tested positive for drug use, and defendant failed to obtain drug treatment as directed. 10/18/2006Paul A. Zoss
USA v. Hoffman -- Report and recommendation that motion to suppress evidence be denied. Court found officers were justified in conducting investigatory stop of defendant, and had probable cause to arrest him after he fled scene of suspected drug activity and failed to comply with officers' orders that he stop and remove his hand from his pants pocket.10/17/2006Paul A. Zoss
USA v. Nieman -- Report and recommendation on motion to dismiss and motion to suppress. Court found informant's use of drugs with defendant did not constitute outrageous governmental conduct warranting either dismissal of case or suppression of evidence. Court further found probable cause supported issuance of search warrant, and warrant described items to be seized with sufficient particularity.10/05/2006Paul A. Zoss
US v. Brion Johnson; pretrial matters on remand for child pornography charges, interpreting Adam Walsh Act ,US v. Brion Johnson; pretrial matters on remand for child pornography charges, interpreting Adam Walsh Act 09/25/2006Linda R. Reade
USA v. Maldonado-Gutierrez - Report and recommendation on defendants' joint motion to suppress evidence located during search of vehicle incident to traffic stop. In recommending denial of motion, court found officers had probable cause to stop vehicle; to detain occupants beyond scope of initial traffic stop; and to conduct warrantless search of vehicle's interior after drug dog indicated on headlight area of vehicle. 08/22/2006Paul A. Zoss
United States of America v. Sergio Elizarraras-Sepulveda -- Report and recommendation on motion to dismiss one count of two-count indictment. Court found two counts, both involving possession of the same firearm and ammunition, were multiplicitous, and recommended Government be ordered to elect between counts, or to supersede and include both theories in a single count.08/09/2006Paul A. Zoss
USA v. Kling -- Report and recommendation on three motions to suppress evidence in case involving charges of inducing a minor to engage in sexually-explicit conduct for purposes of producing photos and videos. In recommending that all three motions be denied, court found defendant's Miranda rights were not violated; officers' failure to provide copy of search warrant prior to initiating search did not warrant suppression; information provided by Internet Service Providers provided probable cause for search of defendant's computer and his residence; and probative value of explicit photos and videos outweighed prejudicial effect.07/12/2006Paul A. Zoss
U.S. v. August L. Holthaus, Jr.; sentencing memorandum opinion resolving advisory guidelines calculation issues relating to loss in bankruptcy proceeding and whether a bankruptcy trustee may recover restutition under the MVRA.07/07/2006Linda R. Reade
U.S. v. Mark Lou Meyer; Order revoking defendant's probation after he violated his conditions of probation by traveling out-of-state without permission and by having eight positive sweat patch test results07/07/2006Linda R. Reade
U.S. v. Daniel P. Mitchell; sentencing memorandum opinion06/22/2006Linda R. Reade
USA v. Mathison -- Order denying applications for return of seized property. Court found proper procedures were followed in administrative forfeiture proceedings, and court lacked jurisdiction to review the merits of those proceedings in the context of this criminal action.06/13/2006Paul A. Zoss
U.S. v. Kent Raymond Platter; Order denying defendant's motion to dismiss alternate counts pursuant to United States v. Richardson, 439 F.3d 421 (8th Cir. 2006); the court declined to compel the government to elect between multiplicitous counts under 18 U.S.C. § 922(g)(1) and (3). 06/12/2006Linda R. Reade
USA v. Haberek -- Report and recommendation on defendant's motion to strike the statutory presumption from 18 USC 228(b), as an unconstitutional violation of his Due Process rights. Court found authorities cited by defendant to be persuasive, and in absence of any resistance by the Government, recommended motion be granted. 06/07/2006Paul A. Zoss
U.S. v. Steven Bradford; Order granting defendant's motion for specific enforcement of a plea agreement and dismissing the indictment.06/02/2006Linda R. Reade
Laffey v. Burt (Habeas petition by state prisoner; petitioner’s objections to report and recommendation on the merits of the petition: alleged insufficiency of the evidence of sexual abuse of children under twelve in violation of due process; alleged Eighth Amendment violation asserting disproportionality between the offenses and two consecutive twenty-five year sentences imposed for them)05/08/2006Mark W. Bennett
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.) 05/04/2006Mark W. Bennett
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)04/24/2006Mark W. Bennett
USA v. Avise -- Report and recommendation on defendant's motion to suppress evidence. Officer stopped vehicle registered to individual whose license was barred. Defendant had recently purchased vehicle and had no registration. Defendant's behavior led officers to believe he was under influence of alcohol or drugs. Officers arrested defendant to perform sobriety testing at police station. Defendant's car and jacket were searched incident to arrest, and drugs and other evidence were found. Search warrant executed at defendant's residence yielded further incriminating evidence. Court found officers had reasonable suspicion defendant was engaged in criminal activity justifying his warrantless arrest; search of vehicle and jacket incident to arrest was proper; and warrant was based on probable cause. 04/18/2006Paul A. Zoss
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. )04/13/2006Mark W. Bennett
U.S. v. L.M. (a juvenile) Order on government's motion to transfer proceedings04/12/2006Linda R. Reade
Show details for [</A><Font Color=#FF0000><A HREF="/e-web/decisions.nsf/0/518A878897DB6F2E8625714D00543D8A/$File/USA+v.+McCall.USA v. McCall -- Report and Recommendation on defendant's motion to dismiss Count 2 of Indictment as multiplicitous. Defendant was charged in two counts of illegally possessing ammunition, in violation of two separate subsections of 18 USC 922(g), and argued the single incident of possession should be charged in only a single count pursuant to United States v. Richardson, 439 F.3d 421 (8th Cir. 2006). Court agreed, and recommended Government be ordered either to elect between the two counts, or to supersede and include both theories or prosecution in a single count. 04/11/2006Paul A. Zoss
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)). 04/05/2006Mark W. Bennett
U.S. v. L.M. (a juvenile); Order granting in part and denying in part government's motion to permit victims access to information and proceedings03/31/2006Linda R. Reade
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.)03/24/2006Mark W. Bennett
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)03/23/2006Mark W. Bennett
United States of America v. Yerkes -- Report and recommendation on motions to suppress evidence. Court found officer's approaching defendant to talk to her in parking lot was lawful; defendant consented to search of her vehicle; and evidence seized from defendant's vehicle, and from search of apartment pursuant to warrant, should not be suppressed. Court further found defendant had invoked her right to remain silent and requested an attorney, and officers' re-initiation of contact to interview defendant violated her Fifth Amendment rights; thus her statements to officers during post-arrest interview should be suppressed.02/07/2006Paul A. Zoss
U.S. v. Shaun Joseph Ruff; Order re remand from Eighth Circuit regarding restitution and double recovery02/02/2006Linda R. Reade
U.S. v. Shaun Joseph Ruff; Order denying defendant's motion for recusal01/25/2006Linda R. Reade
USA v. Williamson -- Order on motion to continue competency hearing. Court discusses interplay between statutes authorizing competency evaluations of criminal defendants in the federal system, and the Speedy Trial Act.01/18/2006Paul A. Zoss
United States v. Easley -- Report and recommendation on defendant's motion to suppress evidence from two separate searches. First search took place at Omaha, Nebraska, bus station, when officers observed suspicious actions by defendant and companion, neither was able to produce adequate identification, and companion ran from police. Second search took place at Sioux City, Iowa, motel, after officers learned drugs had been sold in motel room and arrested all occupants for frequenting disorderly house. Court found officers had probable cause to detain defendant and conduct pat-down search at bus station, and to detain, arrest, and search defendant at motel.01/09/2006Paul A. Zoss
U.S. v. Daniel P. Mitchell; Order granting defendant's motion for new trial01/04/2006Linda R. Reade
U.S. v. Angela Johnson (297 page opinion denying defendant's request for post-trial relief)12/16/2005Mark W. Bennett
U.S. v. Kevin Patrick O'Connell; Order setting aside magistrate judge's report and recommendation re motion to suppress12/07/2005Linda R. Reade
USA v. Lamere - Report and recommendation that motions to suppress evidence be denied. Officers stopped vehicle in which Defendant was passenger for purpose of arresting vehicle's driver. Drugs were found in vehicle and Defendant was arrested, as well. Rejecting Defendant's contrary argument, court found officers had probable cause to stop vehicle, arrest driver, search vehicle, and arrest Defendant.11/29/2005Paul A. Zoss
USA v. Morris -- Report and recommendation on defendant's motions to suppress evidence. Defendant arguerd officers lacked probable cause to stop his vehicle and arrest him, and also that his arrest was based on racial profiling. Court recommended motions be denied, finding no evidence to suggest racial profiling and officers had probable cause to stop and arrest defendant.11/17/2005Paul A. Zoss
U.S. v. Jose De Jesus Ibarra-Castaneda, Luis Armando Varela-Arteaga, Hacienda Las Glorias, Inc., Mexico of Cedar Rapids, Inc., Cuatro, Inc. and Hot Springs, Inc.; Order re defendants' motion for recusal10/31/2005Linda R. Reade
U.S. v. Jeremy Ray Hall; Order re defendant's motion to suppress10/13/2005Linda R. Reade
United States of America v. Wendel -- Report and recommendation, recommending denial of motion to suppress evidence from search of defendant's residence. Court found defendant's consent to search was voluntary, and officers did not enter residence until written consent was given by defendant. 10/06/2005Paul A. Zoss
United States of America v. Johnson and Heidzig -- Report and Recommendation on defendants' motion to suppress, recommending motion be granted as to pre-Miranda statements, and denied as to post-Miranda statements and also as to cocaine found on defendant Heidzig's person. One key issue was whether officer's statement to defendant Heidzig that he wanted item she was concealing, and his directions to her to remove the item from her pants and place it on the floorboard of his vehicle, constituted questioning for purposes of Miranda. Court found that it did; however, court also found defendant Heidzig was undr de facto arrest at the time, and therefore, was subject to search incident to arrest, which would have led to discovery of drugs in any event.09/22/2005Paul A. Zoss
U.S. v. Araceli Martinez; Order on defendant's motion to recuse09/07/2005Linda R. Reade
McGhghy v. Hastings -- Report and recommendation on petition for writ of habeas corpus/writof coram nobis. Court recommended denial of petition for lack of jurisdiction.08/24/2005Paul A. Zoss
U.S. v. Scott W. Meiner; Order regarding motion to suppress08/16/2005Linda R. Reade
U.S. v. Craig Allen Thomas; Order regarding defendant's motion to suppress08/08/2005Linda R. Reade
U.S. v. Dustin Honken (206 page ruling denying defendant's motion for judgment of acquittal or in the alternative new trial)07/29/2005Mark W. Bennett
United States of America v. Keough -- Report and recommendation on defendant's motion to suppress evidence obtained in warrantless search of his residence. Court found Government failed to meet its burden to show defendant's consent to search was voluntary, and recommended motion be granted.07/21/2005Paul A. Zoss
United States of America v. King - report and recommendation on defendant's motion to suppress his confession, recommending motion be denied. Court found defendant was not promised leniency in return for information, and he was not mentally impaired by virtue of being under the influence of drugs at time of confession.07/11/2005Paul A. Zoss
United States of America v. Aguilar-Barraza -- Report and recommendation on defendants' motions to suppress evidence. Court found pre-Miranda questions about whether defendant was in possession of drugs were intended to elicit incriminating statements and should be suppressed. Court found no constitutional infirmity in search of defendant incident to arrest, search of defendant's vehicle, consent search of defendant's room in family home, search of second defendant's vehicle in parking area across alley from residence, search warrant for family residence, and defendant's post-Miranda statements.06/08/2005Paul A. Zoss
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order on defendant’s motion to exclude hearsay testimony during “penalty phase” on confrontation clause, due process clause, and statutory grounds) 06/06/2005Mark W. Bennett
United States of America v. Jones -- Report and recommendation on motion to suppress evidence. Defendant, who was stopped and then arrested for minor traffic violations, claimed officer lacked probable cause to detain him at scene to await drug dog, to arrest him, and to search his vehicle incident to arrest. Defendant also claimed search warrant application lacked probable cause because it failed to show connection between defendant and place to be searched. Court found officer had probable cause to stop, detain, and arrest defendant; to search vehicle incident to arrest; and for magistrate to find probable cause to issue search warrant.06/01/2005Paul A. Zoss
U.S. v. Angela Johnson : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order denying defendant’s renewed motion to strike death penalty where government is no longer asserting guilt as a “principal”)05/03/2005Mark W. Bennett
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order granting in part and denying in part defendant’s motion to exclude evidence and argument that she acted as a “principal” in the alleged killings)05/03/2005Mark W. Bennett
United States of America v. Hinman, Dose and Weber (Report and recommendation on motions to dismiss Second Superseding Indictment, or to require plaintiff to elect between what defendants claimed to be multiplicitous counts. Defendants raised two double jeopardy arguments against indictment which charged them with violations of 18 USC 1035 and 18 USC 1001. Court rejected both arguments and recommended motions to dismiss be denied. Court also rejected one defendant's claim that indictment failed to charge defendants properly under 18 USC 1516.)04/22/2005Paul A. Zoss
United States of America v. Nairn (Report and recommendation on defendant's motion pursuant to 28 USC 2255. Defendant sought to withdraw guilty plea to one charge of indictment on basis of ineffective assistance of counsel. Court found counsel was ineffective in failing to recognize, and advise defendant of fact, that plaintiff's Rule 11 letter and court's recitation of elements of one charge were incorrect. Defendant pled guilty to charge of possessing firearms "during and in relation to" a drug crime, when indictment charged him with possessing firearms "in furtherance of" a drug crime. Court recommended defendant be allowed to withdraw guilty plea to that count of the indictment.)04/12/2005Paul A. Zoss
U.S. v. Angela Johnson : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order denying defendant’s motion to dismiss for failure to charge offenses owing to omission of “substantive connection” between killings and drug conspiracy or CCE)04/11/2005Mark W. Bennett
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); pretrial ruling on the proper degree of case-specific questioning, if any, that is permissible in the course of life- or death-qualifying prospective jurors)03/31/2005Mark W. Bennett
United States of America v. Summers (Report and recommendation on defendant's motion to dismiss indictment for violation of Sixth Amendment right to speedy trial. Applying Barker v. Wingo, court found approximately one-year delay between indictment and defndant's arrest gave rise to presumption of prejudice; delay was due to plaintiff's negligence; defendant had asserted his right timely; and delay had prejudiced defendant's ability to defend against the charges. Finding all four Barker factors weighed in defendant's favor, court recommended dismissal of indictment.)03/18/2005Paul A. Zoss
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order regarding intention of defendant, who had given notice of intent to rely on mental condition evidence in the "penalty phase," to assert her Fifth Amendment right against self-incrimination to questions about her involvement in the charged murders during mental examinations by government mental health experts) 03/17/2005Mark W. Bennett
U.S. v. Maurice Wilkins; Court denied defendant's motion to withdraw his guilty plea based on alleged ineffective assistance of counsel 03/17/2005Linda R. Reade
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling denying defendant’s motion to exclude evidence of identification of remains where defendant has stipulated to identity of remains) 03/10/2005Mark W. Bennett
USA v. Ortiz-Martinez (Report and recommendation that defendant's motion to dismiss be denied. Defendant sought dismissal of Indictment for violation of Fed. R. Crim. P. 5(a) requirements that he be brought before a magistrate judge "without unreasonable delay." Court found defendant was in state custody until one day before his initial appearance, and defendant failed to show any prejudice from delay in arresting him on federal charges and bringing him to federal court.)03/07/2005Paul A. Zoss
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order for return to defendant of privileged documents obtained by the law enforcement officers)03/02/2005Mark W. Bennett
USA v. Lee (Report and recommendation on defendant's motion to suppress evidence. Court found defendant's companion had expectation of privacy in motel room and right to consent to search of motel room; officers' forced entry into motel room occupied by defendant was warranted based on outstanding arrest warrant and on exigent circumstances; search of motel room was valid based on companion's consent to search. Court recommended defendant's motion to suppress be denied.)02/23/2005Paul A. Zoss
U.S. v. Angela Johnson : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on second round of pretrial motions)02/18/2005Mark W. Bennett
U.S. v. Eddie Denton; In a case involving an individual who injured his head after committing the crime but before being indicted, the court found, based on medical evidence, trial counsel's testimony, the defendant's childrens' affidavits, and the court's own recollection of the defendant's trial testimony and demeanor, the defendant received due process and was competent to stand trial and to assist in his defense. 02/16/2005Linda R. Reade
USA v. Dose, et al. (Report and recommendation on numerous motions challenging sufficiency of Superseding Indictment. In light of 1/12/05 Supreme Court decision in Booker and Fanfan, court recommended defendants' motions to strike "Notice of Additional Relevant Facts" from indictment be granted (withdrawing prior R&R to the contrary). Court recommended denying motions to dismiss indictment or require Government to elect between charging defendants under 18 USC 1001 and 18 USC 1035 on basis of double jeopardy; court found Congress intended that conduct may be punishable under both sections. Court recommended striking fraud allegations for lack of specificity, but otherwise recommended denying motion to dismiss for failure to state an offense. Court recommended denying motion to suppress and in limine to prevent introduction of evidence derived from interview between corporation's attorney and defendant Hinman; court found no attorney-client privilege existed between attorney and defendant.)01/12/2005Paul A. Zoss
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on first round of pretrial motions)01/03/2005Mark W. Bennett
United States v. Piedra (Report and Recommendation on defendant's motion to suppress evidence obtained in stop and search of vehicle he was driving. Court found 1. defendant had standing to challenge search of vehicle he was driving with owner's permission; 2. defendant did not commit traffic violation that would provide probable cause for stop of vehicle; but 3. officers had reasonable suspicion that vehicle was involved in criminal activity, and therefore stop of vehicle was valid; and 4. officers were permitted to search passenger compartment of vehicle incident to defendant's arrest for driving without a license. Court recommended motion be denied.)12/15/2004Paul A. Zoss
U.S. v. Dustin Honken : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on defendant’s request for “residual doubt” instruction in “penalty phase”)09/01/2004Mark W. Bennett
United States of America v. Felix Aguin-Guerra (Report and recommendation on defendant's motion to suppress un-Mirandized statements he made to USICE agents. Agents interviewed defendant at jail after his arrest on traffic charges. Court found agents' questioning, without advising defendant of his rights, violated Miranda, and did not fall within "routine booking exception." Court recommended suppression of defendant's statements regarding his citizenship and immigration status.)08/20/2004Paul A. Zoss
U.S. v. Dustin Honken : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on the government’s motion to have the defendant wear shackles at trial)07/21/2004Mark W. Bennett
U.S. v. Dustin Honken (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on the parties’ second round of pre-trial motions regarding admissibility of evidence) 07/16/2004Mark W. Bennett
United States of America v. Kunkel (Report and recommendation on motion to suppress evidence obtained during cursory search of premises incident to defendant's arrest. Court found an evidentiary hearing was not warranted because it was clear suppression was improper as a matter of law. Court held officers performed a proper protective sweep of premises incident to defendant's arrest, and recommended the motion be denied.)07/15/2004Paul A. Zoss
U.S. v. Dustin Honken : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on government’s pre-trial motions regarding admissibility of evidence)06/07/2004Mark W. Bennett
U.S. v. Dustin Honken (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order denying motion to reconsider order for anonymous jury and determining degree of “anonymity”)05/14/2004Mark W. Bennett
United States v. Barnett (Report and Recommendation on motions filed by defendant charged with violations of federal firearms laws (including charge under 18 U.S.C. section 924(c)), seeking dismissal of Superseding Indictment on grounds of (1) lack of specificity, (2) unconstitutional vagueness, (3) selective or vindictive prosecution. Issues discussed include whether indictment must state defendant had knowledge of specific characteristics of sawed-off shotgun that make it a "destructive device," possession of sawed-off shotgun as "crime of violence" for purposes of sction 924(c) offense; scienter requirement for section 5861 violations; elements of offence under section 922(g)(3), and constitutionality of that section; elements of prima facie case of selective prosecution; and showing necessary to obtain discovery on issue of selective prosecution.)04/09/2004Paul A. Zoss
United States of America v. Darrian Jordan and Mendoor Smith (Report and Recommendation on motion to suppress evidence. Court found defendants failed to make substantial preliminary showing necessary to obtain a Franks hearing, and in any event, probable cause existed to issue search warrant. Court also found defendant Jordan ws searched incident to arrest, not pursuant to warrant. Recommends motions and request for evidentiary hearing be denied.)03/16/2004Paul A. Zoss
United States of America v. Johnson (Report and Recommendation on motion to suppress evidence, filed by defendant Brion Dodd Johnson. Court found defendant failed to make substantial preliminary showing necessary to obtain a Franks hearing, and recommended defendant's motion and request for hearing be denied.)03/16/2004Paul A. Zoss
United States of America v. Vaudt (R&R on defendant's motion to suppress evidence obtained during execution of state search warrant. Court found warrant application contained sufficient facts to support magistrate's finding of probable cause, and in any event, even if warrant was not supported by probable cause, officers relied on warrant reasonably and in good faith, applying United States v. Leon.)02/19/2004Paul A. Zoss
U.S. v. Dustin Honken : (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order for anonymous jury and determining degree of “anonymity”)01/29/2004Mark W. Bennett
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. )01/20/2004Mark W. Bennett
U.S. v. Billy Gene Howard; motion for judgment of acquittal and for new trial (case charging defendant with being a felon in possession of a firearm, knowingly possessing stolen firearms, and being an unlawful user of methamphetamine in possession of firearms, defendant alleged the evidence connecting him with a burglary in which firearms were stolen was insufficient to support the inference he stole the firearms and the evidence indicated defendant's brother was responsible for the guns being in defendant’s van; jury convicted on all 3 counts; court accepted verdict and denied motions for new trial and acquittal)01/07/2004Linda R. Reade
U.S. v. Dustin Honken(death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order closing hearing on government’s motion for anonymous jury)01/07/2004Mark W. Bennett
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.)01/06/2004Mark W. Bennett
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)12/24/2003Mark W. Bennett
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)12/23/2003Mark W. Bennett
U.S. v. Leppert; motion to suppress evidence seized from his residence pursuant to search warrant; officers received information from previously-untested informant who told them Leppert had sold him methamphetamine at Leppert's residence that day and he had previously seen Leppert sell one-half gram of methamphetamine for a shotgun; reliable CI had told officers approximately one week prior to the search that he knew Leppert was "staying" at the residence and he corroborated other informant's testimony about the shotgun exchange; analysis of whether (1) search warrant for residence was supported by probable cause that Leppert was residing at the house searched and evidence of a crime would be found at the house; (2) officers nonetheless acted reasonably under the Leon good faith exception in relying on the warrant 12/03/2003Linda R. Reade
U.S. v. Dustin Honken (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); order for hearing and briefing on government’s motion for anonymous jury, including whether the hearing should be closed and the appropriate degree of “anonymity” for the jury)11/26/2003Mark W. Bennett
United States of America v. Betterton (R&R on defendant's motion to suppress evidence seized during inventory search after vehicle was impounded. Defendant was stopped for equipment violation (cracked windshield). He was arrested when officer learned he was driving under suspension. No one else was present to move the vehicle from the roadway, and it was stopped in a "no parking" zone, creating a traffic hazard. Inventory search was performed following the impoundment, pursuant to departmental policy. Court recommended motion to suppress be denied, finding impoundment and subsequent inventory search were lawful, and nothing that in any event, officers could have searched the vehicle incident to Defendant's arrest.)11/24/2003Paul A. Zoss
U.S. v. Altedias Campbell; Order on motion for new trial11/19/2003Linda R. Reade
U.S. v. Curtis Swayze; Order on motion for new trial11/18/2003Linda R. Reade
United States of America v. Elmer Taylor (R&R recommending denial of majority of motion to suppress evidence in criminal case. Defendant claimed he was not competent to understand and enter into a plea agreement, and factual stipulations in the plea agreement should not be admissible against him at trial. He also sought to suppress evidence arising from a stop and subsequent search of a vehicle, and statements he made on the night of his arrest. Court discussed requiements for voluntary, knowing, and competent waiver by a defendant of the plea-statement protections provided by Fed. R. Evid. 410.)10/22/2003Paul A. Zoss
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)09/04/2003Mark W. Bennett
U.S. v. Dustin Honken (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on defendant’s motion to dismiss capital counts on former jeopardy grounds)07/21/2003Mark W. Bennett
U.S. v. Angela Johnson (death-penalty prosecution pursuant to 21 U.S.C. § 848(e)(1)(A); ruling on defendant’s motion to reconsider denial of motion to dismiss non-capital offenses on statute of limitations grounds)07/11/2003Mark W. Bennett
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) 05/30/2003Mark W. Bennett
United States of America v. Saucillo (R&R recommending denial of defendant's motion to suppress in drug distribution case. Defendant threw drugs out of second-story window onto ground in rear of multi-family dwelling. Curtilage was unfenced and totally open to public access. Court found defendant consented to search of apartment, and he had no legitimate expectation of privacy in curtilage of multi-family dwelling.)05/13/2003Paul A. Zoss
United States v. Jesse Hephner and Shannon Kramarczyk; motion to suppress; (Order regarding report and recommendation concerning motion to suppress; probable cause supported initial stop; moving of truck prior to search was reasonable; search did not exceed scope of defendant’s consent; length of stop was not longer than necessary to effectuate purpose of stop; drug dog’s positive indication during sniff provided probable cause for search of truck and toolbox; defendant was not in custody when he made statements prior to being given Miranda warnings; and statement made after invocation of right to counsel was inadmissible.) 05/08/2003Linda R. Reade
United States of America v. Hessman (Report and Recommendation on defendant's motion to suppress. Officer faxed unsigned, unsworn search warrant application and affidavit to State magistrate at out-of-town hotel. Magistrate signed warrant and faxed it back to officer. Officer was sworn and signed application and affidavit next morning, after search was concluded and defendant had been arrested. Court found search warrant based on unsigned, unsworn application and affidavit was invalid under Fourth Amendment. Court also found Leon good faith exception did not apply, and recommended defendant's post-arrest statements be suppressed under Wong Sun exclusionary rule.)04/14/2003Paul A. Zoss
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.)04/03/2003Mark W. Bennett
United States of America v. Jay Del Drahota (R&R on several pretrial motions in this drug conspiracy case. Of particular interest is defendant's claim that State authorities promised him immunity if he cooperated with law enforcement in connection with the prosecution of another individual. Although finding the State's grant of immunity could not bind federal authorities, the court nevertheless found defendant's confession was involuntary, and recommended Kastigar hearing to determine whether untainted evidence exists to support the indictment. Other issues discussed include standards for wavier of right to counsel by defendant appearing pro se; waiver of Miranda rights; standards for dismissal based on pre-indictment delay.)03/20/2003Paul A. Zoss
United States v. Ketzeback (R&R recommending defendant's motion to suppress be granted due to officers' reckless or intentional omission from search warrant application of information impacting informant's credibility. Issues: requirements for Franks hearing; reliance on confidential or anonymous informants; Leon analysis)02/10/2003Paul A. Zoss
U.S. v. Wade Wilson; motion to suppress evidence seized during traffic stop; officers followed defendant’s vehicle after he stopped briefly at an apartment building where officers were about to execute a search warrant; officers initially pulled over defendant’s vehicle because valid registration not displayed; officers saw proper registration tag as they approached the vehicle; analysis of whether: (1) search warrant authorizing the search of “all vehicles registered to anyone known to reside at [an apartment]" of a multi-unit building is unconstitutional; (2) probable cause dissipated once officer saw registration tag; (3) leaving multi-unit apartment building where one apartment unit is a suspected crack house, with no other suspicious circumstances, constitutes reasonable suspicion; (4) consent removed taint of unlawful detention 02/07/2003Linda R. Reade
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.)01/20/2003Mark W. Bennett
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