United States v. Riley, 189 F.3d 802 (9th Cir. 1999) (Judge Rymer)
United States v. Nuñez, 180 F.3d 227 (5th Cir. 1999) (Judge Smith)

These two cases are noted as successful examples of raising issues on appeal that are often ignored because they are long shots. In the Riley case, ...

In this case Judge Scheindlin reversed two of the RICO convictions on the grounds that no reasonable jury could have found that the defendant's motivation for attempting to shoot a rival drug dealer was to increase his position in the gang.

Although the issue was never raised in opening arguments, ...

The Court held that as the term "victim" is used in § 2A4.1, it "rather plainly refers solely to the victim of the kidnapping, and not to persons suffering collateral injury during the kidnapping who are not themselves abducted. . . . Quite obviously the references are to persons who ...

Here, some 28 years after the events that gave rise to the claims for damage that arose in this case out of the Attica rebellion in 1971, the Second Circuit reversed both the liability and damage awards, despite harsh criticism of the long delays.

Way back in 1971 a bloody ...

QUOTE OF THE WEEK - One of the classic observations about how the rights of the Constitution are eroded.

"It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent ...

Here the Court held that the district court had jurisdiction to revoke a yerm of supervised release where arrest warrant was issued during term of supervised release but revocation hearing was hot held until after the term expired.

The Court stated: "Although Section 3853(e)(3) is silent as to whether the ...

In this decision, Judge Gertner forcefully dispelled a common myth, namely that when one gives the police a written "consent" to search his or her premises, that consent is always voluntary and per se unimpeachable. As is her wont, she meticulously examined the facts that led to the consent to ...

Here the Court held that a jury instruction which permitted the jury to convict on two alternative grounds, one of which was not charged in the indictment, impermissibly expanded the indictment in violation of the defendant's Fifth Amendemnt rights.

United States v. Riley, 189 F.3d 802 (9th Cir. 1999) (Judge ...

In this case, the government conceded that Hernandez was "found in" the United States in Oregon, but argues that Hernandez was also "found in" the United States in Washington because section 1326 is a continuing offense. The government argued that the defendant's presence in a judicial district, for any reason, ...

Here the Court held that where the Government's position in litigating an in rem forfeiture proceeding was not justified, the successful claimants were entitled to attorney's fees under the Equal Access to Justice Act.

Citing Commissioner, INS v. Jean, 496 U.S. 154, 158, the Court stated: "[E]ligibility for a fee ...

The Court stated: "A motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 may be granted 'if the interests of justice so require.' Fed.R.Crim.P. 33. Whether to grant a motion for a new trial pursuant to Rule 33 rests in the broad discretion of the trial ...

Citing Morris v. Slappy, 461 U.S. 1, 11 (1983), the Court held that the Supreme Court does not require either the defendant or the government to establish a compelling reason to obtain a continuance. To the extent that United States v. Lillie, 989 F.2d 1054, 1056 (9th Cir. 1993), and ...

The Court noted that "[w]hile neither of the possessory crimes with which Defendant is charged on their face meet the definition of "crime of violence" contained in see 18 U.S.C. § 16, the Fifth Circuit has held that, in the context of pretrial detention, "it is not necessary that the ...

Here the Court held that the Government had no "continuing interest" in retaining property that had been seized, and ordered its return under Rule 41(e), despite the Government's assertion that its investigation was still in the preliminary stages.

In its detailed review of the law on Rule 41(e), the Court ...

Here the Court held that a denial of a request for fees and costs under the Hyde Amendment (18 USC 3006A, Note) is subject to the ten-day appeal period provided for in Fed.R.App.P. 4(b), not the provisions of 28 USC § 4212.

In this case the Court held that the ...

Citing the language of Application Note 2, the Court stated: "The note makes clear that a two-level increase in a defendant's base offense level under section 3B1.1(c) is proper only if a defendant was the organizer or leader of at least one other participant in the crime, asserting control or ...

The Court noted that "As to Count One, the only dispute was whether Garcia had knowledge of the marijuana in his spare tire. As was the case in James, Garcia did not dispute any other element of the charges. Garcia admitted that he owned the car, and that the substance ...

This is one of those "safety valve" cases that shows how the law can be twisted by savvy drug dealers. In this case the Court held that the defendant's untruthful statements about two prior, unrelated drug activities did not disqualify him from relief, under U.S.S.G. § 5C1.2, from the applicable ...

In this case the petitioner waited from the effective date of the AEDPA, Aptil 24, 1996, until November 15, 1996, to file his state post-conviction motion. That motion was denied on October 23, 1997, and the petitioner did not file in federal court until August 24, 1998. The Court held ...

The Court held that the Supreme Court's decision in Jones v. U.S., 143 U.S. 311 (1999) "forecloses this reading of federal criminal statutes except where statutory sections specifically increase punishments for prior crimes. . . . Jones teaches us to avoid encroaching on a defendant's Fifth Amendment rights by construing ...

Notwithstanding defendant's prior entry of a "Notice of Entry of Plea of Guilty," the Court held that the Government's subsequent filing of information required to trigger mandatory minimum at plea hearing was timely under 21 USC § 851(a)(1).

Here, despite agreeing that the prosecutor engaged in improper tampering with a defense witness by threating him with perjury if he testified, and by making improper comments during summation, it held the errors were harmless.

This is one of those "scratch your head and wonder" cases. The defendant, Gregory True, ...

The defendant claimed that his victim was constructively released prior to 24 hours because she was left alone at a convenience store on two occasions and could have escaped. The Court concluded: "In the circumstances here, we conclude that the district court did not err in failing to grant a ...

Here the Court vacated a forfeiture verdict and the Government's claim of the facilitation theory under 18 USC § 982 because the Government failed to show a sufficient nexus between the money laundering offenses and the property it sought to forfeit.

Here the Government cited United States v. Tencer, 107 ...