Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Magistrate Judge's omission of query about compulsion from the plea acceptance colloqouy was insufficient plain error for reversal, since, absent a claim that compliance with the rule would have resulted in a different plea, there was no effect on substantial rights, and the text of the rule deems errors that don't affect substantial rights to be harmless.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/19-10228.pdf
Expert testimony of federal investigator on the recalcitrance of victims wasn't an abuse of discretion or beyond the rule, since it was from experience and did not directly address the credibility of any witness.
Identification of deft from Facebook photo after victim provided name and the information that deft had a Facebook account was not an unduly suggestive photo identificaiotn, given the lack of police arrangement.
Phone voluntarily provided by a third party without access to its passcode could lawfully be searched under a subsequent warrant, since the third party held a valid possessory interest in the phone seperate from the privay interest in the data inside the phone. Analogy to a locked safe discussed in circuit precedent.
No clear error in denial of Franks hearing due to claimed misstatements supporting the warrant affidavit, as warrant had independent basis of probable cause apart from that testimony.
Testimony of co-conspirator is sufficient evidence for conviction, unless the testimony is incredible or insubstantial on its face; it is for the finder of fact to weigh the credibility of the testimony. De novo review, as both counsel recited the form of the motion for acquittal.
Proof of a phone call between the two at that time is sufficient evidence for having made a false material statement denying knowledge of a person's whereabouts.
Stipulation to felony status at trial is sufficient to establish contemporary knowledge of that status at the time of firearm possession.
Despite the fact that a large number of juror questions was allowed, deft has not identified, and the court has not found, any that indicate prejudice.
CONCURRENCE IN THE JUDGMENT:
The appeal of the felon in possession count shouldn't have been de novo, even arguendo.
Under the statute, an agent of a foreign government operates under foreign direction and control in something more than a one-sided agreement, but one that doesn't necessarily rise to the level of control suggested by employment.
The exclusion of foreign legal transactions from the statute's reach is an affirmative defense, not an element. Affirmative defenses are not necessarily smaller in scope, and can be used to define the statute's scope.
Circumstantial evidence and rational inference may be used to establish that a person was acting as an agent of a foreign government.
Court erred in granting acquittal, since a rational juror might have determined that the organizational structure and contacts sufficiently established the possibility of foreign direction and control.
Court erred in granting acquittal on Conspiracy, given the agreements, intent to fly below the radar, and decision not to file a notification with the AG.
One-sentence explanation for the granting of a new trial due to the weight of the evidence was categorically insufficient.
Court abused its discretion in holding that the jurors would not honor the limiting instruction on hearsay materials, given the volume of the materials; the ability of the jury to respect their instructions is an almost invariable assumption of the law.
Restricting the reasons for granting a new trial to the ones recited in the motion, including noting the cumulative error, is a jurisdictional limit.
Denial of severance in capital trial of two prisoners was not an abuse of discretion; jury presumably followed court's instructions, the extensive priors of one co-deft were not unduly prejudicial, and the co-deft's co-conspirator's admissions would have been considered anyway in a separate trial as a statement against interest.
Jury not unduly prejudiced by disclosure at trial that one co-deft had murdered another inmate by stomping on his head.
Since both defts were convicted of beating the victim to death, no plain error in finding that, even if one of them only abetted in the actual murder, the mental state would be sufficient for the death penalty.
No abuse of discretion in arguments about future dangerousness discussing other prisoners who had committed prison murders after commutation of death sentence.
No plain error in discussion of commutation of death sentence that might suggest to the jury that the ultimate responsibility for the sentence might be elsewhere.
No abuse of discretion in government's characterization of mitigation evidence as mitigation of the crime rather than penalty-phase considerations, as the government later appropriately characterized the role of mitigation evidence generally, and a curative instruction was given.
No plain error in government statements about doing justice and the deft's intent to kill.
No plain error in introduction of evidence from unmirandized psychotherapist sessions in rebuttal, since deft had placed his mental health in issue by raising past difficulties in mitigation.
No error in the Sixth Amendment deprivation of counsel during the psychotherapist's examination, as the deft did not establish that the interview was to assess future dangerousness.
Common law psychotherapist evidentiary privilege does not exist in the penalty phase of a capital trial; if it did exist, violations here would not be plain error. Potential circuit split flagged.
No plain error in government's mitigation phase rebuttal witness' straying into discussions of present events.
Exclusion of warden's statement describing victim's conduct that led to the murder was not an abuse of discretion, as the warden was a single deft in a civil suit, and not speaking for the Bureau.
No abuse of discretion in excluding evidence of plea deal in second murder that was introduced as an aggravating factor in the penalty phase.
No plain error in introduction of acquitted conduct in future dangerousness consideration.
No error in categorical analysis of priors as aggravating factors, since the alternate holding of non-statutory aggravators would not have been perceived as less convincing if the statutory factors had been excluded.
Given circuit precedent that Hobbs Act Robbery is a crime of violence, the conviction survives as an aggravator despite the recent Supreme Court holding on the method of identifying crimes of violence by means of a statute's residual clause; nonviolent Hobbs Act Robbery would be Hobbs Act Extortion.
Jury form that requires juror to first determine the existence of a factual situation before deciding that it is mitigating does not offend the statute that says that a finding of the existence of the fact establishes the grounds of mitigation.
Court's instructions on future dangerousness did not improperly marshal the evidence for the government.
Denial of non-unanimity instruction was not an abuse of discretion; refusing to answer a jury deliberations question about non-unanimity was not error.
Conferences allegedly missing from record do not justify reversal; the conferences were neither a hearing or trial nor a judicial proceeding.
Cumulative error unavailable, since no errors were found.
Evidence of witness' subsequent admission that she was under the influence of narcotics while testifying that she was not a drug user is not new evidence sufficient to revisit the conviction, since the disclosures do not rise to the level of addressing basic competency to testify, and would at most be in for impeachment.
Government concealment of witness' mental state would not rise to the level of a Brady claim.
No abuse of discretion in refusal to grant downward variance from sentencing guidelines.
Concur in J:
The disclosures about the witness are new evidence, but aren't material.
As the executive had access to the financials, exercised purchasing authority, and ran the day-to-day operations, evidence was sufficient for a finding of willful blindness as to the representations; also, the willful blindness instruction was appropriate.
Indictment alleging two codefts engaged in conspiracy and wire fraud was not constructively amended by a theory of the case that the offenses were committed with others as opposed to each other, since the text of the law refers to a single defendant.
No clear error in the court's refusal to give an explicit unanimity instruction, or in not explicitly defining the scienter alternatives to willful blindness.
Court's not polling the jury can't be raised on appeal when explicitly waived at trial.
In the motion for summary judgment, the court appropriately considered and weighed verified complaint as sufficiently evidentiary, as either met the standards for an affidavit, or stated facts within the personal knowledge of the party under penalty of perjury.
Contradictory testimonial narratives are insufficient basis for blatant contradiction exception in challenging factual determinations on appeal; there must be a visible fiction.
Documentary evidence does not utterly discredit claims of verified pleading.
Remaining claims outside the scope of review under the collateral order rule.
Violent arrest with dog was a violation of the Fourth Amendment; the precedent on use of force after the point at which the arrestee had ceased to resist constituted clearly established law.
As ensuring that the plea is knowing and voluntary under FRCrimP. Rule 11 implicates an alien deft's 5A Due Process rights, magistrate judge's plea colloquy that merely asked deft if his plea was voluntary was plain error.