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Criminal Law

Kansas Federal Defender

Coverage of the 10th Circuit, sentencing rulings and content relevant to public defenders.
By Melody Evans and Kirk Redmond

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Last Entry: September 11, 2017 at 21:39:00

ICEd Down

Posted on August 01, 2008
The ICE raids in Postville, Iowa, have amassed serious criticism from all angles, including Congressional hearings last week and ongoing MSM commentary. Especially sharp has been the outrage over the obvious collusion of the federal district court with the prosecution, as noted in this AILA post: "[T]his travesty could not have occurred without the full complicity of the federal district court for the northern district of Iowa...

Blawg Round-up

Posted on July 29, 2008
Nothin' like having someone else do the work -- here is a blawg review from Simple Justice, with something for everyone. Well worth your perusal, Simple Justice claims the theme of the 14th Amendment:Some, by now, may be asking, "what do all these posts have to do with the 14th Amendment?" Everything, I respond, because everything we do as lawyers and in the law ultimately bears upon due process and equal protection, whether positively or negatively...

Numbers and the Magic Box

Posted on July 22, 2008
Ah, the magic DNA box. Sample goes in, profile comes out, and a match of 1 in 62 kajillion condemns the client. The massive number quantifying the odds that the client?s sample would randomly match the genetic profile of an unrelated person comes from a database of genetic information about which we previously knew very little...

Due Process on ICE

Posted on July 08, 2008
Today we have the pleasure of hosting a guest blogger, David Link, who is the preeminent immigration lawyer in Kansas. Our thought is that if we're not going to do our own work anymore, we might as well have the best people out there do it for us. From time to time we risk becoming inured to the ebb and flow of criminal practice...

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The Fourth Amendment in the Electronic Age for Dummies

Posted on June 30, 2008
Confused by cell phone tracking? Flummoxed by file sharing networks? Do you know how to analyze the privacy implications of developing technology when drafting your suppression motion? Yeah- me neither. The folks at the Electronic Freedom Foundation can help...

'Refreshing' Sentencing News

Posted on June 26, 2008
We love guest bloggers, not just because we are sometimes (often) lazy, but because they offer you some variety. Today we have our very bright colleague from Wichita, David Freund, who offers this post: In a refreshing change from the usual affirmance of above guidelines sentences based on the deferential abuse of discretion standard of review after Gall & Kimbrough, in United States v...

Not that Tiger

Posted on June 25, 2008
The Tenth held, in US v. Tiger, that DUI convictions are not 'crimes of violence' for career offender purposes, overruling precedent based on the SCt's recent ruling in Begay. "[T]he definition of 'crime of violence' contained in USSG �4B1.2(a) is virtually identical to that contained in the ACCA...

Porn: Must Read

Posted on June 24, 2008
If you are defending against a computer child porn case, this Slate article is required reading:Why Would a Virus Look at Kiddie Porn? The answer is,So other people could secretly view the porn. Fiola's computer had been taken over remotely by "botnet" operators, who lowered its security protections and may have sold child-porn enthusiasts access to the machine...

Wittig "for the third time"

Posted on June 18, 2008
David Wittig's sentencing appeal from his first trial was finally affirmed. The 10th vacated his two prior sentences (51 months and 60 months), but we see the down side of Gall as this panel affirms this 24 month sentence. The correct guideline range was 0-6 months...

Greenhouse Cooling

Posted on June 16, 2008
When news breaks of a new US Supreme Court decision, I'm sure many of you go straight to the opinion, hot off the press, read it, thoughtfully digest it, then move on to secondary sources to determine the import.Me, I usually skip the USSCT version and go straight to NYTimes reporter Linda Greenhouse...

Notice and GITMO

Posted on June 12, 2008
Bad news: our clients are not entitled to notice that the sentencing court intends to exceed the guideline range. US v. Irizarry was issued by the USSCT today, and held that, "Any constitutionally protected expectation that a defendant will receive a sentence within the presumptively applicable Guidelines range did not, however, survive United States v...

Summer Reading

Posted on June 09, 2008
After you are done with the summer blockbusters, the murder mysteries, the spy novels (my favorite) and, yes, for some of you, Danielle Steele, you need something to make you feel smart again. I have the perfect book: Making Your Case: The Art of Persuading Judges...

Judge Blogger

Posted on June 02, 2008
One of the most innovative and erudite federal judges on the bench, D. Mass. Judge Nancy Gertner, is moonlighting as a blogger for Slate. Judge Gertner was the defense hero of downward departures during that long, dark night of mandatory guidelines. Here is an excerpt from a great Boston Globe article...

Good Reading

Posted on May 29, 2008
If you are enough of a geek to be interested in the various splits and leanings of the United States Supreme Court justices, here is a very good and nuanced New York Times article by Linda Greenhouse entitled "At Supreme Court, 5-to-4 Rulings Fade, but Why?" She discusses the role that Kennedy played in the last term, and how that has changed...

Finally, a little help....

Posted on May 21, 2008
Please welcome a new guest blogger- Paige Nichols. Paige's submission today concerns United States v. Hasan, an interesting case concerning interpreters, conflicting trial court rulings, and plain error. Though the trenchant analysis and careful exposition of case facts clearly distinguish the rest of this post from the usual cobbled-together tripe around here, to be clear, the following was contributed by Paige:This week the Tenth Circuit decided United States v...

Fun with Crimes of Violence

Posted on May 21, 2008
A pair of Tenth Circuit opinions today serve to remind that there is much hay to be made about the categorization of prior crimes. In United States v. Hayes, the defendant was indicted as a possessor of a firearm after a domestic violence conviction. Mr...

Eye Witness ID Jury Instruction

Posted on May 13, 2008
Recently, Kirk posted on eyewitness ID here. On that same subject, Carl Folsom over at the excellent KansasDefenders.blogspot.com , has a post on a new ABA Model cautionary jury instruction on cross-racial eye-witness identification, here. Well worth reading, and it comes with some interesting resource cites.

How Slow is Too Slow?

Posted on May 13, 2008
Nice reversal of a traffic stop by the 10th in US v. Valdez-Valdez. The trooper stopped Valdez-Valdez for impeding the flow of traffic -- he was driving 45 in a 55 mph zone. That didn't cut it for Judge Hartz. This is a fact-intense opinion, lots of transcript quotes...

Indictment Dismissed, with Prejudice, for Discovery Violation

Posted on May 12, 2008
Tried to think of a clever title for this blog, but few things get our attention like "dismissal" and "discovery violation." This is from Sady's 9th Circuit blog, "Can an AUSA's reckless disregard for his or her constitutional discovery obligations serve as a basis for a dismissal of an indictment -- with prejudice? Yep, after a great discovery decision last week by Judge Kim Wardlaw (left)...

Discretion Exercised the Right Way

Posted on May 07, 2008
Discretion exercised the right way means, of course, a below-guideline sentence that stands up on appeal. The government cried foul when the district court imposed a year-and-a-day sentence rather than the 4-plus years called for by the guideline for transporting heroin, in US v...

I Wear My Sunglasses . . . in Court

Posted on May 06, 2008
The Tenth Circuit didn't give any relief to Mr Thompson here, but some interesting identification thoughts can be generated out of this published opinion. Mr Thompson was charged with bank robbery and weapons violations. At the prosecution's request, the district court made Mr Thompson put on sunglasses so that the jury could compare that real life, in-court image of him with the bank videotape of the robber...

Cracked

Posted on April 28, 2008
Over the last few months, we've been busy with retroactive crack cases. We set up sort of a working committee, with the blessing of Chief Judge Vratil, that included the US Attorney's Office, US Probation, and our office to try to work through these cases and get relief where relief is due...

Kimbrough Applied to Meth

Posted on April 22, 2008
Nice reversal by the 10th in US v. Santillanes. Here's the case in a nutshell:At sentencing, Santillanes requested a downward variance, arguing the disparity between mixed and actual methamphetamine in the Guidelines produced a sentence that was greater than necessary under the factors delineated in 18 U...

Practicality

Posted on April 18, 2008
This week, on the same day that the US Supreme Court handed down the much-publicized Baze decision that lethal injection is just fine in this country, two other decisions were also published. These are less dramatic, and -- thankfully -- much shorter and simpler...

Two Good Words: Free CLE

Posted on April 14, 2008
Just in case you haven't heard, the annual Panel Counsel Training Seminar will be offered April 24th (Lawrence) and April 25th (Wichita). Call Cindy Johnson in our office for info and to register (785.232.9828, 800.359.9492, cindy_johnson@fd.org). Topics will include the ever-evolving practice of federal sentencing, criminal history, fascinating BOP issues, and the keys to electronic filing...

Serial Number Enhancements in Gun Cases

Posted on April 11, 2008
We have seen a few PSRs enhancing gun defendants because the weapon did not have a serial number. This is not a valid enhancement, for two reasons. First, the enhancement applies to an "obliterated" serial number, not an absent one. Second, many older firearms never had a serial number in the first place...

Giving Up Too Much?

Posted on April 10, 2008
This is not so much a law topic as strategy session. With the advent of Gall and Kimbrough, this is the question: when should we use written plea agreements? Given all the concessions that the prosecution demands on guideline sentences and appeal waivers, the benefit to our clients is often negligible...

New Online Resource For Eyewitness ID Cases

Posted on March 31, 2008
There is a new website available for eyewitness identification cases- http://www.eyeid.org/. This site has a number of links to bibliographies, a blog, and other resources for defense counsel faced with a case in which eyewitness identification is a substantial issue...

Trial by Certificate: Are Lab Reports Testimonial?

Posted on March 26, 2008
The answer seems obvious to most defense attorneys, yet prosecutors routinely try to bypass witness testimony by just offering the report. Now the US Supreme Court has granted cert. in Melendez-Diaz v. Mass. to determine whether the certificates of forensic lab reports are testimonial under Crawford...

Qwested

Posted on March 21, 2008
On Monday, the Tenth Circuit reversed the conviction of a Qwest exec convicted of insider trading because the trial court excluded defense expert testimony, in a rather abrupt and ungracious manner. Prof Ellen Podger at White Collar Crime Prof Blog has this excellent summary here, and includes these two notes:The court notes the difference between civil and criminal cases - "Unlike under the civil rules, an expert in a criminal case is not required to present and disclose an expert report in advance of testimony...

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