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October 27, 2009:
08-5151-cr United States v. Jackson - Before: McLAUGHLIN, KATZMANN, Circuit Judges, and KORMAN, District Judge. The Court vacates the defendant’s conviction for possession of a firearm because the district court admitted evidence that the defendant had been in an apartment from which weapons and drugs were later recovered. The evidence was not admitted for a proper purpose, and the error was not harmless. The Court notes that "Failing to detail the contents of the apartment would not have left any gaps in the Government's case, nor have left the jury wondering about missing pieces of the story. ... the evidence more likely confused the jury than assisted its understanding of the case." VACATED AND REMANDED.
US v. Cobb, -- F.3d --, 2009 WL 3418214 (10th Cir. 10/26/09) - The Tenth Circuit reverses a district court ruling that it lacked authority under the amended crack guidelines to reduce Mr. Cobb's bottom of the guideline sentence, which was imposed under 11(e)(1)(C). The sentence was "tied to the guidelines at every step." The final plea agreement specified the applicable guideline range and the parties negotiated the stipulated sentence to be a guideline range sentence. The sentencing court independently determined the applicable guideline range when it imposed the sentence. "It is simply unrealistic to think that the applicable guideline range is not a major factor (if not the major factor) in reaching a stipulated sentence. If we categorically removed Rule 11 pleas from the reach of § 3582, it would perpetuate the very disparity § 3582 and the retroactive application of Amendment 706 were meant to correct."
October 21, 2009:
08-5506-cr United States v. Bell - Before: MINER and CABRANES, Circuit Judges, RAKOFF, District Judge. The government appealed from an October 23, 2008 order of the District Court (Alfred V. Covello, Judge) granting defendant-appellee John W. Bell, Jr., a new trial after a jury found defendant guilty of (1) attempted murder of a federal officer in violation of 18 U.S.C. § 1114, (2) assaulting, resisting, opposing, impeding or interfering with a federal officer, in violation of 18 U.S.C. § 111(a)(1), (b), and (3) discharging a firearm in connection with these crimes in violation of 18 U.S.C. § 924(c)(1)(A)(iii). The Second Circuit concludes that the District Court erred in ordering a new trial because (1) the District Court’s jury instructions on intentional conduct were legally correct and did not constitute plain error warranting a new trial, (2) the District Court’s use of a general verdict form was not plain error and thus not a basis for ordering a new trial, (3) the District Court rested its decision to grant a new trial on clearly erroneous factual findings, and (4) the District Court failed to evaluate the entire trial record in ruling on defendant’s motion for a new trial. Accordingly, the District Court’s order for a new trial is reversed and the case is remanded for sentencing.
October 20, 2009:
08-0322-cr USA v. Wright (McCallum)- Before: JACOBS, Chief Judge, MCLAUGHLIN and B.D. PARKER, Circuit Judges. Defendant appeals from a judgment of conviction on charges involving various narcotics offenses. 21 U.S.C. §§ 846, 812, 841(a)(1), (b)(1)(A), (b)(1)(C). The Second Circuit concludes that although the District Court erred in admitting the defendant’s two prior narcotics convictions (because there was no indication in the record that the Court engaged in a Rule 403 balancing inquiry), this error was harmless and the judgment is AFFIRMED.
October 2, 2009:
08-1834-cr United States v. Grandt (Shim) - Before: B.D. PARKER, WESLEY, Circuit Judges, MURTHA, District Judge. Appellant Jae Shim appealed from a judgment of conviction of the United States District Court for the Southern District of New York (Hellerstein, J.), on the charge of conspiring to transport women in interstate and foreign commerce for the purpose of prostitution in violation of § 2421 of the Mann Act. The Second Circuit holds that the district court erred in failing to instruct the jury that Shim had to know that the women were transported in interstate commerce to be guilty of the offense, and accordingly reverses her conviction.
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