1. Art and Diseño

ISSUES PENDING IN THE
TENTH CIRCUIT
COMPILED BY THE KANSAS FEDERAL PUBLIC DEFENDER
Updated February 4, 2015
PREFACE
In the fall of 2014, we (the Kansas Federal Public Defender) contacted the Tenth Circuit Court
of Appeals about compiling a list of issues pending in the Court. To accomplish our goal, we needed
the Tenth Circuit’s assistance, and, with no resistance, the Court came through (we are particularly
indebted to Chief Deputy Clerk Chris Wolpert). Without the Tenth Circuit’s assistance, this
document would not exist.
We borrowed this idea from the Federal Public Defender for the Central District of Illinois.
That office produces a similar document for issues pending in the Seventh Circuit (available here:
http://ilc.fd.org/General%20Documents/7IP.pdf). We thank them for allowing us to follow their
lead.
A few words on the contents of this document. First, we began this project on December 1,
2014. Thus, any issue raised on or after this date should be included and discussed below. Also, any
issue raised prior to December 1, 2014, but raised in an appeal with a response or reply brief filed on
or after December 1, 2014, should be included as well. We’ve made efforts to go beyond this, to
include cases fully briefed prior to December 1, 2014. We still have a ways to go. We will continue to
add cases, and, at some point, this document will include all issues currently pending in the Tenth
Circuit. Of course, this means that, when an appeal is decided, the issue will be removed from this
document (as no longer pending).
Second, we have categorized issues in what we hope is a sensible approach. The categories are
neither static nor exhaustive. We might add new ones, combine old ones, or make any other changes
we see fit. Our goal is to make this as user-friendly as possible.
Third, the document is searchable. If you want to know if there are any current issues pending
on the Second Amendment, for instance, just search for the phrase “Second Amendment.” Or, if
you want to find cases asserting harmless error, just search “harmless error” (we have a Standards of
Review Section, but we do not include a harmless error subsection; any assertion of harmless error is
noted at the end of the statement of the issue). This is an important point to remember, and one
that could save you some time.
Fourth, our hope is to hyperlink the Table of Contents to the body of the outline. Until we make
this happen, we suggest you search for the phrase in the Table of Contents.
Fifth, following the Table of Contents, we have included a list of recently added cases. As we
progress, this section will include all cases added within the last week. We think this list a good
resource for those who wish to use this document a regular basis (and we thank AFPD Jill Wichlens
(Denver) for the suggestion).
And finally, the document is available to anyone, for whatever use it might provide. We suggest
the following uses: (1) when filing a brief in the Tenth Circuit or litigating an issue in the district
court, to determine whether similar issues are currently pending, and, if so, to advise the Court and
to review the briefs to assist in formulating arguments; (2) to assist attorneys in preserving issues in
the district court (by providing notice of issues recently raised); and (3) to become better writers (by
reading others’ work and attempting to improve on it).
Our goal is to update this document daily. If we fall behind a few days, we apologize. If you are
aware of an issue that we might have missed, please send the case name and number our way.
Please direct all inquiries to Dan Hansmeier at [email protected]
TABLE OF CONTENTS
I. Confessions
A. Voluntariness
II. Double Jeopardy
III. Fourth Amendment Issues
A. Arrest Warrant Issues
B. Consent
C. Franks v. Delaware Issues
D. Fruit of the Poisonous Tree
E. Good Faith Exception
F. Knock and Talk
G. Plain View Doctrine
H. Protective Sweeps
I. Scope of Warrantless Search
J. Search Incident to Arrest
K. Search Warrant Issues
L. Traffic Stops
M. Warrantless Arrests
N. Warrantless Seizures
IV. Guilty Plea Issues
V. Indictment Issues
A. Constructive Amendment
B. Grand Jury Issues
C. Sufficiency of the Indictment
D. Variance
VI. Ineffective Assistance of Counsel
VII. Motion Practice
VIII. Offenses
A. 16 U.S.C. § 3372, et al. (illegally taken fish and wildlife)
B. 18 U.S.C. § 2 (aiding and abetting)
C. 18 U.S.C. § 371 (conspiracy)
D. 18 U.S.C. § 922(g) (felon-in-possession)
E. 18 U.S.C. 922(n) (felon under indictment)
F. 18 U.S.C. § 924(c) (Possesion/Use of Firearm during drug trafficking offense)
G. 18 U.S.C. § 1028A (identity theft)
H. 18 U.S.C. § 1344 (bank fraud)
I. 18 U.S.C. § 1512 (witness tampering)
1. subsection (b)
J. 18 U.S.C. § 1951 (Hobbs Act robbery)
K. SORNA (18 U.S.C. § 2250 (Failure to Register); 42 U.S.C. § 16911)
L. 18 U.S.C. § 2252A (child exploitation)
1. subsection (b)(2) (mandatory minimum)
M. 21 U.S.C. § 841 (drug trafficking)
N. 21 U.S.C. § 846 (drug conspiracy)
O. 26 U.S.C. § 7212
IX. Plea Agreement Issues
A. Appeal Waiver
B. Rejection of Plea Agreement
X. Restitution (18 U.S.C. § 3663, 3664, et al)
XI. Rules of Criminal Procedure
A. Rule 8 (Joinder/Severance)
1. Joinder
2. Severance
B. Rule 33 (motions for new trial)
XII. Scope of Remand/Mandate Rule
XIII. Second Amendment Issues
XIV. Sentencing
A. Allocution
B. 18 U.S.C. 924(e) (Armed Career Criminal Act)
C. Burdens of Proof
D. Guidelines Sections
1. USSG § 2A3.5 (SORNA)
2. USSG § 2A4.1
a. subsection (b)(2)(A) (permanent or life-threatening bodily injury)
3. USSG § 2B1.1
a. subsection (b) (loss amount)
4. USSG § 2C1.1
5. USSG § 2D1.1
a. subsection (b)(1) (possession of a firearm)
b. subsection (b)(5) (importation of meth)
c. subsection (c) (drug quantity)
6. USSG § 2G2.2 (child pornography)
a. subsection (b)(5) (pattern of abuse)
7. USSG § 2K2.1
a. “prohibited person”
7. USSG § 2L1.2 (immigration offenses)
a. subsection (b)(1)(A)(ii) (crime of violence)
8. USSG § 2Q2.1
9. USSG § 3C1.1
10. USSG § 3E1.1
11. USSG § 4A1.1
12. USSG § 4A1.2
1. subsection (e)(1)
2. subsection (e)(2)
13. USSG § 4B1.2 (crime of violence; controlled substance offense)
1. crime of violence
14. USSG § 4B1.5
15. USSG § 5K1.1
E. Mandatory Minimums
F. Reasonableness
1. Procedural
2. Substantive
G. Constitutional Issues
A. Fifth Amendment Due Process
B. Sixth Amendment Jury Trial
XV. Speedy Trial
XVI. Standards of Review
A. Waiver
B. Forfeiture/Plain Error
C. De Novo Review
XVII. Supervised Release
A. Revocation Issues
1. Sufficiency of the Evidence
B. Sentencing Issues
1. Procedural
2. Substantive
C. Conditions of Supervised Release
XVIII. Trial Practice and Evidence Issues
A. Closing Argument
B. Confidential Informants
C. Confrontation Clause
D. Cumulative Error
E. Expert Testimony (Rules, 702, 703, 704)
F. Eyewitness Identification Testimony
G. Hearsay
1. 911 Call
2. Business Records
a. Bank Records
b. Cell Phone Tower Data
c. Gang Certifications
3. Not Offered for the Truth
4. Out of Court Documents
H. Jury Instructions
1. Aiding and Abetting
2. Deliberate Avoidance
3. Elements
4. Flight
5. Guilt by Association
6. Investigative Techniques
7. Knowledge
8. Prior Bad Acts
9. Proof
10. Theory of Defense/Affirmative Defense
I. Mistrial
J. Prior Convictions
K. Prosecutorial Misconduct
L. Relevance (Rules 401, 402, 403)
M. Right to Be Present
N. Right to Present Defense
O. Rule 403 (prejudice)
1. Contracts
1. DNA evidence
2. Gang Evidence
3. Photographs
4. Prior Convictions
5. Sexual Assault Evidence
P. Rule 404(b)
Q. Rules 412, 413 & 414 (sexual assault evidence)
R. Rule 1002 (Best Evidence Rule)
S. Surrebuttal
XIV. Void for Vagueness
XX. Miscellaneous
1. Forum Shopping
2. Disqualification of Government Counsel
CASES ADDED WITHIN THE LAST THREE DAYS
United States v. Alam, No. 14-3169 (brief filed January 30, 2015)
United States v. Allen, No. 14-2201 (brief filed February 2, 2015)
United States v. Le, No. 14-5080 (gov’t brief filed February 2, 2015)
United States v. Iverson, No. 14-8071 (brief filed February 2, 2015)
United States v. Marquez, No. 14-3136 (gov’t brief filed February 3, 2015)
I. Confessions
A. Voluntariness
Whether a statement given to officers was voluntary where the defendant was, inter alia, sleepdeprived and misled as to the purpose of the meeting with the officers. United States v. Rodebaugh, No.
13-1081 (brief filed December 5, 2014)
II. Double Jeopardy
Whether it is a violation of the double jeopardy clause to try an individual on a conspiracy count
after obtaining a guilty verdict on a substantive offense underlying the alleged conspiracy. (defendant
concedes claim is foreclosed by Supreme Court precedent) United States v. Hopkins, No. 13-5072
(consolidated with United States v. Hill, No. 14-5074 & United States v. Hill, No. 14-5084) (argued
September 30, 2014) (Hartz, Phillips, McHugh).
Whether convictions for violations of both 18 U.S.C. § 1425 (false statements in applying for
naturalization) and 18 U.S.C. § 1546 (obtaining immigration documents via false statements) were
multiplicitous because they relied on identical criminal acts (plain error). United States v. Worku, No.
14-1218 (reply brief filed February 3, 2015)
III. Fourth Amendment Issues
A. Arrest Warrant Issues
B. Consent
Whether the defendant’s consent to enter the residence was knowing and voluntary where the
defendant’s answer (“sure”) to the officers’ request to accompany him into the residence was a mere
acquiescence to a show of authority. United States v. Carloss, No. 13-7082 (argued September 30,
2014) (Tymkovich, Ebel, Gorsuch).
Whether the defendant’s consent to enter the residence was tainted by the officer’s
unlawful/unconstitutional knock-and-talk trespass on personal property. United States v. Carloss, No.
13-7082 (argued September 30, 2014) (Tymkovich, Ebel, Gorsuch).
Whether the defendant’s consent to search a vehicle extended to a sealed case of beer contained in
that vehicle, and whether that consent allowed police officers to destroy the case of beer and to
render it useless (hint: there was methamphetamine in one of the beers). United States v. CamargoChavez, No. 14-7068 (brief filed December 22, 2014)
C. Franks v. Delaware Issues
Whether the district court failed to follow proper procedures in ruling on a motion to suppress filed
pursuant to Franks v. Delaware (government appeal). United States v. Herrera, No. 13-1527 (argued
September 29, 2014) (Gorsuch, Sentelle, Murphy)
Whether the district court erred in its factual findings when it granted the defendant’s motion to
suppress based on material omissions from the warrant affidavit (government appeal). United States v.
Herrera, No. 13-1527 (argued September 29, 2014) (Gorsuch, Sentelle, Murphy)
Whether the district court erred when it determined that the omissions at issue were material to the
probable cause determination (government appeal). United States v. Herrera, No. 13-1527 (argued
September 29, 2014) (Gorsuch, Sentelle, Murphy)
D. Fruit of the Poisonous Tree
Whether the district court erred in suppressing an alien’s fingerprints and the “A-file” as a result of
an illegal arrest where the fingerprints were taken as part of a routine booking procedure
(government appeal). United States v. Argueta-Mejia, No. 14-1244 (response brief filed January 12,
2015)
Whether the district court should have suppressed the defendant’s post-arrest statements, made less
than 4 hours after arrest, in light of the defendant’s unconstitutional arrest. United States v. ArandaDiaz, No. 14-2089 (brief filed January 26, 2015)
E. Good Faith Exception
Whether the district court erred when it excused a Fourth Amendment violation based on good
faith where the officers stopped a vehicle with a temporary license tag based on faulty information
from a computer database with systemic, grossly negligent deficiencies (the common response to a
temporary tag was “not on file”). United States v. Esquivel-Rios, No. 14-3162 (brief filed December 11,
2014)
Whether the good faith exception applied in this case involving a search warrant affidavit in a child
pornography case that allegedly lacked probable cause because it was based on evidence that the
defendant possessed legal erotica, not child pornography, as well as First-Amendment-protected
comments made by the defendant on the Internet. United States v. Edwards, No. 14-5083 (brief filed
January 16, 2015).
F. Knock and Talk
Whether officers’ knock and talk on the front door of a residence marked by several no trespassing
signs constituted a trespassory violation of the Fourth Amendment under United States v. Jones, 132
S.Ct. 945 (2012). United States v. Carloss, No. 13-7082 (argued September 30, 2014) (Tymkovich, Ebel,
Gorsuch)
G. Plain View Doctrine
H. Protective Sweeps
I. Scope of Warrantless Search
Whether a search of a vehicle incident to arrest was unconstitutional because the officers dismantled
the vehicle’s console in the process of the search. United States v. Aranda-Diaz, No. 14-2089 (brief
filed January 26, 2015)
J. Search Incident to Arrest
Whether the warrantless search of a vehicle was unconstitutional where the defendant was not
arrested in or by the vehicle, but where a possible controlled buy took place in the vehicle. United
States v. Aranda-Diaz, No. 14-2089 (brief filed January 26, 2015)
K. Search Warrant Issues
Whether the district court erred when it suppressed evidence obtained via a search warrant issued by
a Kansas magistrate judge to search a residence in Oklahoma, in violation of Federal Rule of
Criminal Procedure 41(b)(1). (government appeal). United States v. Krueger, No. 14-3035 (argued
September 30, 2014) (Tymkovich, Ebel, Gorsuch)
Whether the search warrant affidavit (based on information from an unreliable confidential
informant, three “trash pulls,” and brief surveillance of the home) lacked probable cause to believe
that the residence contained drugs. United States v. Becknell, No. 13-3311 (argued September 30, 2014)
(Tymkovich, Ebel, and Gorsuch)
Whether the search warrant affidavit, after excising false material, established probable cause that the
defendant was engaged in firearms smuggling. (government appeal). United States v. Adams, No. 142138 (brief filed December 3, 2014)
Whether the issuance of a state search warrant was unconstitutional because: (1) it was not issued by
a neutral and detached magistrate; (2) the affidavit lacked probable cause that the defendant dealt
drugs or that drugs would be found in the home; (3) the affidavit failed to connect the residence
searched to unlawful activity; (4) the search warrant authorized a general search (and the officers
conducted a general search; and (5) the information relied on in the warrant was stale. (government
invokes good faith exception). United States v. Villanueva, No. 14-6081 (fully briefed December 8,
2014)
Whether the search warrant affidavit lacked probable cause because it was based on: (1) a
confidential informant not shown to be reliable (other than generalized statements); and (2) no
meaningful corroboration of the informant’s claims. United States v. Manning, No. 14-5078 (brief filed
December 19, 2014)
Whether the search warrant affidavit in this child pornography case lacked probable cause because it
was based on evidence that the defendant possessed legal erotica, not child pornography, as well as
First-Amendment-protected comments made by the defendant on the Internet. United States v.
Edwards, No. 14-5083 (brief filed January 16, 2015).
Whether the search warrant failed to describe the place to be search with sufficient particularity (it
noted the address’s prefix as North, when it was South). United States v. Deloera-Escolera, No. 14-5143
(brief filed January 21, 2015)
L. Traffic Stops
Whether the officer unlawfully extended a traffic stop based upon the traffic violation, the
defendant’s suspended driver’s license, and the defendant’s travel plans and nervousness (some of
which the officer learned only during the extended portion of the stop). United States v. Pettit, No. 144043 (argument set for March 17, 2015)
Whether the search of the passenger compartment of a vehicle was unconstitutional where officers
removed the occupants prior to the search and had no basis to believe that the vehicle contained
contraband or dangerous weapons (the government calls the search a permissible protective search
based on reasonable belief that the occupants were dangerous and could gain immediate control of a
weapon). United States v. Marquez, No. 14-3136 (gov’t brief filed February 3, 2015)
M. Warrantless Arrests
Whether the district court committed plain error when it determined that the defendant was
unlawfully arrested because the officers had probable cause to believe that the defendant was
committing an illegal reentry offense under 8 U.S.C. § 1326 (government appeal). United States v.
Argueta-Mejia, No. 14-1244 (response brief filed January 12, 2015)
Whether officers had probable cause to arrest the defendant for drug distribution where the arrest
was based on uncorroborated and vague information from a confidential informant and a controlled
buy made by an “unwitting informant” unknown to the officers. United States v. Aranda-Diaz, No. 142089 (brief filed January 26, 2015)
N. Warrantless Seizures
Whether an officer’s warrantless seizure of a suitcase from an Amtrak train violated the Fourth
Amendment where the officer did not have reasonable suspicion to suspect that the suitcase
contained contraband. United States v. Hill, No. 14-2206 (brief filed January 12, 2015)
IV. Guilty Plea Issues
Whether the defendant’s excessive pretrial detention was inherently coercive and rendered the plea
involuntary. United States v. Malik, No. 14-1367 (brief filed January 21, 2015)
V. Indictment Issues
A. Constructive Amendment
Whether, under plain error review, the district court committed a reversible error when it
constructively amended the indictment by instructing the jury that it only had to find that the
defendant used or possessed a firearm in a prosecution for discharge of a firearm under 18 U.S.C. §
924(c)(1)(A)(iii). United States v. Mann, No. 13-2214 (argued September 29, 2014) (Kelly, Bacharach,
Phillips).
Whether, under plain error review, the district court committed a reversible error when it
constructively amended the indictment by instructing the jury on possession with intent to distribute
drugs when the indictment only charged an aiding and abetting theory. United States v. Edwards, No.
14-7028 (set for argument on February 10, 2015).
Whether, under plain error review, the district court committed a reversible error when it
constructively amended the indictment by instructing the jury, in a mail fraud case, that it had to find
that the defendant “participated” in a scheme, rather than it had to find that the defendant “devised”
a scheme to defraud. United States v. Kalu, No. 14-1068 (brief filed January 14, 2015)
B. Grand Jury Issues
Whether the indictment should have been dismissed as improperly obtained where the grand jury
was “manipulated by a private bank so it could get out from under a $63 million civil judgment for
its own fraud” (the government asserts, inter alia, that the defendant lacks standing to assert a
codefendant’s rights) United States v. Davis, No. 14-7078 (gov’t brief filed January 28, 2015) (case is
related to United States v. Calhoun, No. 14-7077 (reply brief filed January 22, 2015)).
C. Sufficiency of the Indictment (Sixth Amendment)
Whether the district court erred when it denied the motion to dismiss the indictment in this
production of child pornography case where the indictment alleged an offense “on or about
between August 1, 2011 and November 7, 2001,” and the dates of production were essential to the
defendant’s ability to present an adequate defense. United States v. Gutierrez, No. 14-2129 (brief filed
January 28, 2015)
D. Variance
Whether the government’s evidence at trial, establishing smaller conspiracies and not the single
conspiracy alleged in the indictment, constituted an impermissible variance from the indictment.
United States v. Hopkins, No. 13-5072 (consolidated with United States v. Hill, No. 14-5074 & United
States v. Hill, No. 14-5084) (argued September 30, 2014) (Hartz, Phillips, McHugh)
Whether the government’s evidence at trial, establishing multiple conspiracies instead of the single
conspiracy charged in the indictment, and establishing drug sales on different dates and in different
amounts than charged in the indictment, constituted an impermissible variance from the indictment.
United States v. Redifer, No. 14-3031 (brief filed December 15, 2014).
VI. Ineffective Assistance of Counsel
Whether the district court erred when it refused to dismiss the indictment in this case based on a
claim of ineffective assistance of counsel, namely, that retained counsel was ineffective in light of a
conflict of interest arising from the fact that counsel was retained and paid by a third party. United
States v. Calhoun, No. 14-7077 (reply brief filed January 22, 2015) (case is related to United States v.
Davis, No. 14-7078 (gov’t brief filed January 28, 2015)).
Whether trial counsel was ineffective for the following reasons: (1) introducing, during voir dire,
prejudicial gang membership evidence that was publicized prior to trial; (2) failure to move to
exclude evidence that two young men retrieved a gun in the vicinity of where the defendant was
arrested; (3) failure to object to improper statements made by the prosecutor during opening and
closing arguments; (4) failure to object to jury instructions on flight and law enforcement techniques;
(5) failure to present evidence that one individual gave a statement that the gun was not the
defendant’s and that an officer had a relationship with the defendant’s common-law wife. United
States v. Mendez, No. 14-4078 (gov’t brief filed January 28, 2015)
VII. Motion Practice
Whether the district court committed plain error when it required the defendant to go first at a
hearing on the admissibility of an allegedly involuntary confession. United States v. Rodebaugh, No. 131081 (brief filed December 5, 2014)
Whether a district court must inform a defendant that any testimony given at a voluntariness hearing
may be admitted at trial either in the government’s case-in-chief or to impeach the defendant if he
testifies (assuming the admissibility of the statements for these purposes). United States v. Rodebaugh,
No. 13-1081 (brief filed December 5, 2014)
Whether the district court erred when it failed to hold a hearing on the defendant’s motion for a
new trial (based on jury misconduct). United States v. Kupfer, No. 13-2138 (gov’t brief filed January 9,
2015)
VIII. Offenses
A. 16 U.S.C. § 3372, et al. (illegally taken fish and wildlife)
Whether the evidence was sufficient to convict (the case involves luring deer with salt, then killing
them). United States v. Rodebaugh, No. 13-1081 (brief filed December 5, 2014)
B. 18 U.S.C. § 2 (aiding and abetting)
Whether the district court erred when it omitted an essential element of aiding and abetting in its
jury instructions (whether someone else committed the underlying crime). United States v. Edwards,
No. 14-7028 (set for argument on February 10, 2015).
Whether the district court committed plain error when it omitted an element of aiding and abetting
from the jury instructions (that someone else committed the crime). United States v. Washington, No.
14-7017 (gov’t brief filed December 12, 2014)
C. 18 U.S.C. § 371 (conspiracy)
Whether the evidence was sufficient to prove the interdependence element to a conspiracy charge
where the evidence established that smaller conspiracies robbed banks (not a single conspiracy).
United States v. Hopkins, No. 13-5072 (consolidated with United States v. Hill, No. 14-5074 & United
States v. Hill, No. 14-5084) (argued September 30, 2014) (Hartz, Phillips, McHugh).
D. 18 U.S.C. § 922(g) (felon-in-possession)
Whether § 922(g) violates Congress’s Commerce Clause powers. United States v. Becknell, No. 13-3311
(argued September 30, 2014) (Tymkovich, Ebel, and Gorsuch). (issue preserved for further review)
E. 18 U.S.C. 922(n) (felon under indictment)
F. 18 U.S.C. § 924(c) (Possesion/Use of Firearm during drug trafficking offense)
Whether, under plain error review, the district court committed a reversible error when it
constructively amended the indictment by instructing the jury that it only had to find that the
defendant used or possessed a firearm in a prosecution for discharge of a firearm under 18 U.S.C. §
924(c)(1)(A)(iii). United States v. Mann, No. 13-2214 (argued September 29, 2014) (Kelly, Bacharach,
Phillips).
Whether the evidence was insufficient to support a § 924(c) conviction where the gun was found in
the defendant’s mother’s home, and drugs were found in this house in locations different than the
gun. United States v. Becknell, No. 13-3311 (argued September 30, 2014) (Tymkovich, Ebel, and
Gorsuch).
Whether the evidence was insufficient to support a § 924(c) conviction, and particularly the “in
furtherance of” element, where a gun was found in a vehicle where an alleged controlled buy took
place, but the defendant told officers that he had the gun for protection because he had recently
been shot. United States v. Aranda-Diaz, No. 14-2089 (brief filed January 26, 2015)
G. 18 U.S.C. § 1028A (identity theft)
Whether the evidence was insufficient to prove identity theft where the defendant had consent to
use the other person’s identity (plain error). United States v. Worku, No. 14-1218 (reply brief filed
February 3, 2015)
H. 18 U.S.C. § 1344 (bank fraud)
Whether the evidence was insufficient to establish that the bank was federally insured, where the
government failed to admit a certificate of insurance, instead relying on testimony from a
government agent that the agent had viewed the certificate. United States v. Iverson, No. 14-8071 (brief
filed February 2, 2015)
I. 18 U.S.C. § 1512 (witness tampering)
1. subsection (b)
Whether the evidence was insufficient to establish the element of “corrupt persuasion” in this
witness tampering case where the evidence only established that the defendant said “you should only
lie about the important stuff,” as that phrase was not an act of persuasion. United States v. Sparks, No.
14-3120 (government’s brief filed on December 16, 2014)
J. 18 U.S.C. § 1951 (Hobbs Act robbery)
Whether the evidence was sufficient to support a robbery conviction based solely on an officer’s
testimony that he witnessed the defendant in an alley near the residence where the robbery proceeds
were found. United States v. Hill, No. 14-5074 (consolidated with United States v. Hopkins, No. 13-5072
& United States v. Hill, No. 14-5084) (argued September 30, 2014) (Hartz, Phillips, McHugh).
Whether the evidence was sufficient where the evidence did not establish that multiple people
committed various robberies. United States v. Hill, No. 14-5084 (consolidated with United States v.
Hopkins, No. 13-5072 & United States v. Hill, No. 14-5074) (argued September 30, 2014) (Hartz,
Phillips, McHugh).
K. SORNA (18 U.S.C. § 2250 (Failure to Register); 42 U.S.C. § 16911)
Whether SORNA exceeds Congress’s Commerce Clause powers in light of NFIB v. Sebelius, 132
S.Ct. 2566 (2012). United States v. Lynch, No. 14-7057.
Whether SORNA exceeds Congress’s Commerce Clause powers in light of NFIB v. Sebelius, 132
S.Ct. 2566 (2012). United States v. Alexander, No. 14-7058 (brief filed December 17, 2014)
Whether SORNA violates the Tenth Amendment because it commandeers state officials to enforce
the federal sex offender registration scheme. United States v. Lynch, No. 14-7057.
Whether SORNA violates the Tenth Amendment because it commandeers state officials to enforce
the federal sex offender registration scheme. United States v. Alexander, No. 14-7058 (brief filed
December 17, 2014)
Whether SORNA violates the Tenth Amendment because it commandeers state officials to enforce
the federal sex offender registration scheme. United States v. Killman, No. 14-7072 (brief filed January
29, 2015)
Whether SORNA, as applied to an individual who committed his underlying sex offense in 1991
(prior to SORNA’s enactment), violates the Ex Post Facto Clause by increasing the punishment for
the previous offense. United States v. Lynch, No. 14-7057.
Whether SORNA violation the Nondelegation Doctrine because it grants unfettered discretion to
the Attorney General to extend the Act’s criminal penalties to individuals who committed prior sex
offense convictions prior to SORNA’s enactment. United States v. Lynch, No. 14-7057.
Whether the defendant was not required to register as a sex offender because his prior California
conviction for Induce Intercourse was an offense involving consensual sex, and such offenses do
not qualify as “sex offenses” under the definition of that term in 42 U.S.C. § 16911(5)(C). United
States v. Alexander, No. 14-7058 (brief filed December 17, 2014)
L. 18 U.S.C. § 2252A (child exploitation)
1. subsection (b)(2) (mandatory minimum)
Whether a Colorado conviction for sexual exploitation of a child was not a conviction “relating to . .
. possession . . . of child pornography for purposes of increasing the mandatory minimum in this
child pornography case (government appeal). United States v. Bennett, No. 14-1384 & 14-1402 (gov’t
brief filed December 30, 2014)
M. 21 U.S.C. § 841 (drug trafficking)
Whether the evidence was insufficient to support the conviction where drugs were found in the
defendant’s mother’s house, the house contained indicia of others residing there, and there was no
evidence that linked the defendant to the drugs found in the house. United States v. Becknell, No. 133311 (argued September 30, 2014) (Tymkovich, Ebel, and Gorsuch).
Whether the evidence was insufficient to support a possession with intent to distribute conviction
where the defendant was merely present in a vehicle that contained drugs and there was no evidence
that he had knowledge of the drugs. United States v. Washington, No. 14-7017 (gov’t brief filed
December 12, 2014)
N. 21 U.S.C. § 846 (drug conspiracy)
Whether the evidence was insufficient to convict the defendant where there was no physical
evidence of guilt and the testimony of the coconspirators was incredible and unreliable. United States
v. Velarde, No. 14-8037 (fully briefed as of December 1, 2014).
Whether the evidence was sufficient to convict the defendant where the evidence did not support a
shared, common goal among the coconspirators. United States v. Redifer, No. 14-3031 (brief filed
December 15, 2014).
Whether the evidence was sufficient to show that the defendant conspired to distribute more than
280 grams of crack cocaine where it was not reasonably foreseeable that an individual would have
converted that amount of powder cocaine to crack cocaine (after purchasing the powder cocaine
from the defendant). United States v. Dewberry, No. 14-3018 (gov’t brief filed January 21, 2015)
Whether the evidence was sufficient to show that the defendant conspired to distribute crack
cocaine and powder cocaine where the evidence established nothing more than mere association
with an individual who distributed drugs. United States v. Dewberry, No. 14-3018 (gov’t brief filed
January 21, 2015)
Whether the evidence was sufficient to establish the requisite drug quantities necessary to trigger
mandatory minimum sentences. United States v. Dewberry, No. 14-3018 (gov’t brief filed January 21,
2015)
O. 26 U.S.C. § 7212
Whether the evidence was sufficient to support a conviction under § 7212(a) where the
government’s case was for tax evasion and not obstruction. United States v. Sorensen, No. 14-1366
(brief filed December 8, 2014)
IX. Plea Agreement Issues
A. Appeal Waiver
B. Rejection of Plea Agreement
Whether the district court erred when it rejected a plea agreement that involved the dismissal of
certain counts in favor of other, less serious counts, rather than an agreement between the parties to
a particular sentence (i.e., a charge bargain instead of a sentence bargain). United States v. Spaulding,
No. 13-1376 (argued September 29, 2014) (Gorsuch, Sentelle, Murphy)
X. Restitution (18 U.S.C. § 3663, 3664, et al)
Whether the restitution order was erroneous because: (1) it included loss amounts for conduct not
part of the offense of conviction (this is a conspiracy case); and (2) the government failed to prove
the loss amount by a preponderance of the evidence. United States v. Alisuretove, No. 14-7050 (reply
brief filed January 23, 2015).
Whether the restitution award was erroneous in this forced labor case because it was based on an
amount owed assuming the laborers worked the maximum amount of hours and the maximum
amount of years, even though the evidence did not support such findings. United States v. Kalu, No.
14-1068 (brief filed January 14, 2015)
Whether the restitution award was erroneous in this gambling theft conviction because it included
monies earned both legally and illegally. United States v. Le, No. 14-5080 (gov’t brief filed February 2,
2015)
XI. Rules of Criminal Procedure
A. Rule 8 (Joinder/Severance)
1. Joinder
Whether joinder of the defendant’s trial with others charged with bank robbery was error where the
defendant was charged with just one of several robberies. United States v. Hill, No. 14-5074
(consolidated with United States v. Hopkins, No. 13-5072 & United States v. Hill, No. 14-5084, similar
argument raised in the latter appeal) (argued September 30, 2014) (Hartz, Phillips, McHugh).
2. Severance
Whether the district court erred when it denied the defendant’s motion to sever in a drug conspiracy
case in light of the defendant’s request for a speedy trial (the case was designated complex) and in
light of the defendant’s lesser culpability in the offense. United States v. Dewberry, No. 14-3018
(argument set for March 17, 2015)
B. Rule 33 (new trial)
Whether the district court abused its discretion in permitting the defendant to file a motion for a
new trial nearly 3 years after trial just because the defendant’s trial attorney moved to withdraw six
weeks after trial (government argument). United States v. Mendez No. 14-4078 (gov’t brief filed
January 28, 2015)
XII. Scope of Remand/Mandate Rule
Whether the district court erred on remand when it vacated enhanced penalty provisions where
those enhancements were affirmed on appeal under a correct legal standard (the case involves the
Supreme Court’s intervening decision in Burrage v. United States, 134 S.Ct. 881 (2014). (government
appeal) United States v. MacKay, No. 14-4093 (response brief filed January 15, 2015)
XIII. Second Amendment Issues
Whether 18 U.S.C. § 922(g)(5) (unlawful possession of a firearm by an alien) is facially
unconstitutional (the government claims that the issue is waived and also notes that there is binding
precedent foreclosing this argument). United States v. Rangel-Hernandez, No. 14-7056 (gov’t brief filed
January 5, 2015)
XIV. Sentencing
C. Allocution
D. 18 U.S.C. 924(e) (Armed Career Criminal Act)
Whether prior convictions must be alleged in the indictment and proved beyond a reasonable doubt.
(Almendarez-Torres issue) United States v. Villanueva, No. 14-6081 (fully briefed December 8, 2014)
Whether prior convictions must be alleged in the indictment and proved beyond a reasonable doubt.
(Almendarez-Torres issue) United States v. Beierle, No. 14-8049 (brief filed December 12, 2014).
Whether the defendant’s prior Oklahoma conviction for unlawful distribution of marijuana is not a
“serious drug offense” because marijuana use is legal in Colorado and other States and because the
defendant did not actually receive a 10-year sentence for the conviction. United States v. Villanueva,
No. 14-6081 (fully briefed December 8, 2014)
Whether a conviction for possession of a weapon in state prison is a violent felony? United States v.
Beierle, No. 14-8049 (brief filed December 12, 2014)
Whether a California burglary conviction counts as a violent felony in light of Descamps v. United
States, 133 S.Ct. 2276 (2013). United States v. Beierle, No. 14-8049 (brief filed December 12, 2014)
Whether the residual clause is unconstitutionally vague. United States v. Beierle, No. 14-8049 (brief
filed December 12, 2014)
C. Burdens of Proof
Whether the government should have to meet a heightened burden of proof before a district court
can apply sentencing enhancements that significantly increase the defendant’s Guidelines range (in
this case, 8 to 10 years longer). United States v. Redifer, No. 14-3031 (brief filed December 15, 2014).
D. Guidelines Sections
1. USSG § 2A3.5 (SORNA)
Whether the district court erred when it determined that a prior California conviction for Induce
Intercourse qualified as a Tier III offense under a categorical approach because the conviction
sweeps in much more conduct than that punishable as a Tier III offense. United States v. Alexander,
No. 14-7058 (brief filed December 17, 2014)
2. USSG § 2A4.1
a. subsection (b)(2)(A) (permanent or life-threatening bodily injury)
Whether the district court erred when it applied the enhancement to an eye impairment injury
where: (1) it misunderstood that a “protracted” injury was not sufficient to support the
enhancement; (2) misapplied the enhancement based on a mild impairment that caused the victim in
bright light (which he could avoid by wearing sunglasses). United States v. Gallegos, No. 14-2081 (reply
brief filed January 20, 2015)
3. USSG § 2B1.1
a. subsection (b) (loss amount)
Whether the district court erred in its loss calculations because it relied on unsupported information
in the PSR, as opposed to actual evidence that supported a lower loss amount (the government
argues harmless error because the loss amount would still exceed the applicable threshold). United
States v. Alisuretove, No. 14-7050 (reply brief filed January 23, 2015).
Whether the district court erred in its loss calculations in this mortgage fraud scheme because it
refused to offset the loss amount by the amount of the purchase price of the foreclosed property at
a State-mandated Sheriff’s sale (it used subsequent sales by lending institutions following the
Sheriff’s sales). United States v. Alam, No. 14-3169 (brief filed January 30, 2015)
4. USSG § 2C1.1
In this case involving a conspiracy to defraud the government, charged under 18 U.S.C. § 371, the
district court applied § 2C1.1 instead of § 2B1.1 via 2X1.1. Was this error. United States v. Kupfer, No.
13-2189 (gov’t brief filed January 9, 2015)
5. USSG § 2D1.1
a. subsection (b)(1) (possession of a firearm)
Whether the district court’s application of subsection (b) (possession of a firearm) was erroneous
where there was insufficient evidence linking the firearms to the drug conspiracy. United States v.
Redifer, No. 14-3031 (brief filed December 15, 2014).
b. subsection (b)(5) (importation of meth)
Whether the district court erred when it imposed an enhancement for importation of
methamphetamine because the defendant was not conviction of an importation offense and there
was no evidence that he imported drugs. United States v. Redifer, No. 14-3031 (brief filed December
15, 2014).
c. subsection (c) (drug quantity)
Whether the district court’s drug quantity determination was too high in light of witness testimony at
trial and because the district court included personal use amounts. United States v. Redifer, No. 143031 (brief filed December 15, 2014).
6. USSG § 2G2.2 (child pornography)
a. subsection (b)(5) (pattern of abuse)
Whether the district court erred when it imposed the enhancement based on uncorroborated hearsay
statements about an uncharged incident that occurred more than 25 years before the offense
conduct. United States v. Mullins, No. 14-6191 (brief filed January 9, 2015)
7. USSG § 2K2.1
a. “prohibited person”
Was the defendant “under indictment” at the time he committed the instant offense where he had
already received a conditional discharge in the underlying New Mexico case (government claims that
the argument was waived). United States v. Saiz, No. 14-2151 (gov’t brief filed January 22, 2015).
7. USSG § 2L1.2 (immigration offenses)
a. subsection (b)(1)(A)(ii) (crime of violence)
Whether the district court erred when it determined that an Illinois conviction for attempted murder
constitutes a crime of violence because the Illinois statutes defines murder more broadly than the
generic definition of murder (it includes intent to commit “great bodily harm”). United States v.
Castro-Gomez, No. 14-2052 (case argued January 20, 2015)
Whether the defendant’s prior California robbery conviction does not qualify as a crime of violence
because the statute is broader than the generic definition of robbery. United States v. Castillo, No. 144129 (brief filed January 21, 2015)
8. USSG § 2Q2.1
Whether the district court miscalculated the loss amount by overvaluing elk and deer. United States v.
Rodebaugh, No. 13-1081 (brief filed December 5, 2014)
Whether an increase under subsection (b)(2)(B) for susceptibility of wasting disease was improper.
United States v. Rodebaugh, No. 13-1081 (brief filed December 5, 2014)
9. USSG § 3C1.1
Whether the defendant obstructed justice when he gave allegedly false information at a suppression
hearing and at trial. United States v. Rodebaugh, No. 13-1081 (brief filed December 5, 2014)
Whether the district court’s findings were sufficient to support the enhancement. United States v.
Rodebaugh, No. 13-1081 (brief filed December 5, 2014)
The defendant testified at trial that his comments to an officer were in the past tense, not the
present tense. He received an obstruction increase because the court found his testimony amounted
to perjury. Was this error because the testimony was not material. United States v. Bazuaye, No. 143180 (brief filed December 23, 2014)
In this false tax returns case, the defendant refused to incriminate herself by alerting the IRS
investigators to unreported income not yet discovered. Did the district court err when it applied the
obstruction enhancement for this conduct (the government concedes error, but asserts that the error
was harmless with respect to one of the two defendants). United States v. Kupfer, Nos. 13-2138 & 132189 (gov’t brief filed January 9, 2015)
10. USSG § 3E1.1
The defendant elected to go to trial only because the government informed him that he was subject
to the Armed Career Criminal Act’s enhanced penalties. At sentencing, the penalties did not apply.
Did the district court err in denying acceptance points. United States v. Hutchinson, No. 14-5133 (brief
filed January 21, 2015)
11. USSG § 4A1.1
Whether the district court erred in assessing three criminal history points for a prior conviction
based solely on a printout from the Kansas Department of Corrections website that did not show
the length of sentence imposed and that included a disclaimer on the accuracy of information
provided. United States v. Thomas, No. 14-3231 (brief filed January 2, 2015)
12. USSG § 4A1.2
1. subsection (e)(1)
Whether a prior sentence of imprisonment “resulted in the defendant being incarcerated” within
fifteen years of the instant offense only if the prior sentence was a but-for cause of imprisonment
during this fifteen-year period. United States v. Bartley, Nos. 14-1300 & 14-1305.
2. subsection (e)(2)
13. USSG § 4B1.2 (crime of violence; controlled substance offense)
1. crime of violence
Whether the district court erred when it classified defendant’s prior Texas conviction for aggravated
sexual assault of a minor as a crime of violence because the conviction is one for statutory rape,
which is not a violent crime. United States v. Madrid, No. 14-2159 (brief filed December 31, 2014)
14. USSG § 4B1.5
Whether the district court erred in applying a pattern of conduct increase where the prior offenses
relied on to apply the increase were included in the charging instrument, and, therefore, did not
occur on “separate” occasions (and the government did not argue for the increase). United States v.
Evans, No. 14-1142 (reply brief filed January 7, 2015)
15. USSG § 5K1.1
Whether the district court erred when it failed to determine the extent of the defendant’s substantial
assistance, despite its grant of a USSG § 5K1.1 motion, prior to imposing a sentence at the high end
of the applicable Guidelines range. (government concedes error). United States v. Spaulding, No. 131376 (argued September 29, 2014) (Gorsuch, Sentelle, Murphy)
E. Mandatory Minimums
Whether the district court erred when it imposed a 5-year mandatory minimum
sentence even though the defendant was not held accountable for the requisite amount
of drugs to trigger that mandatory minimum at sentencing. United States v. Biglow, No.
14-3104 (gov’t brief filed January 14, 2015)
F. Reasonableness
1. Procedural
Whether the district court erred when it failed to determine the extent of the defendant’s substantial
assistance, despite its grant of a USSG § 5K1.1 motion, prior to imposing a sentence at the high end
of the applicable Guidelines range. (government concedes error). United States v. Spaulding, No. 131376 (argued September 29, 2014) (Gorsuch, Sentelle, Murphy)
Whether, in a child pornography case, the district court improperly treated the Guidelines as
mandatory and failed to consider properly the 18 U.S.C. 3553(a) factors? United States v. Huckeba, No.
14-6167 (brief filed December 10, 2014)
Whether the district court erred when it refused to vary downward in a drug conspiracy case based
on the defendant’s minor role in the conspiracy. United States v. Redifer, No. 14-3031 (brief filed
December 15, 2014).
Whether the district court committed procedural error at sentencing because it: (1) incorrectly
concluded that the defendant used a false identity to enter the U.S. to conceal his involvement in
torture in Ethiopia; and (2) incorrectly concluded that the defendant in fact tortured people in
Ethiopia. United States v. Worku, No. 14-1218 (reply brief filed February 3, 2015)
Whether the district court failed to provide an adequate explanation for a low end Guidelines range
sentence in this illegal reentry case. United States v. Sanchez-Fragoso, No. 14-2185 (brief filed January
12, 2015)
Whether the district court failed to provide an adequate explanation for the imposition of an aboveGuidelines-range 59-month sentence in this drug conspiracy case. United States v. Lake, No. 14-7060
(brief filed January 21, 2015)
Did the district court err when it imposed consecutive sentences for a substantive offense and
violations of supervised release under the mistaken impression that the sentences “had to be”
consecutive. United States v. Gallegos-Garcia, No. 14-1314 (brief filed January 22, 2015)
2. Substantive
Whether a 151-month term of imprisonment imposed in child pornography case was substantively
unreasonable (sentence is at the lowest end of the Guidelines range)? United States v. Huckeba, No.
14-6167 (brief filed December 10, 2014)
Whether an above-Guidelines range sentence of 90 months’ imprisonment in a tax fraud case was
substantively unreasonable in light of the defendant’s age (63 years old), lack of prior criminal
history, poor health, and remorse, as well as the flaws in the fraud Guidelines (the government
claims that the sentences were within the Guidelines ranges on each count and properly imposed
consecutive to each other). United States v. Burg, No. 14-1211 (reply brief filed February 3, 2015)
Whether a 60-month upward variant sentence was reasonable in this case involving a threat to
assault a family member of a law enforcement officer. United States v. Bazuaye, No. 14-3180 (brief
filed December 23, 2014)
Whether the significantly upward variant 264-month sentence imposed in this immigration-fraud
case was unreasonable United States v. Worku, No. 14-1218 (reply brief filed February 3, 2015)
Whether the 41-month sentence (at the lowest end of the Guidelines range) in this illegal reentry
case was substantively unreasonable where the range was based primarily on a 16-level enhancement
for a prior drug conviction. United States v. Sanchez-Fragoso, No. 14-2185 (brief filed January 12, 2015)
Whether the below-Guidelines-range 70-month sentence in this meth conspiracy case was
substantively unreasonable because the district court did not give enough weight to the defendant’s
difficult upbringing, substantial assistance, and the collateral consequences of the sentence. United
States v. Mendoza-Hurtado, No. 14-1434 (gov’t brief filed January 30, 2015)
Whether the above-Guidelines-range 59-month sentence in this drug conspiracy case was
substantively unreasonable. United States v. Lake, No. 14-7060 (brief filed January 21, 2015)
Whether the above-Guidelines-range 72-month term of imprisonment in this mortgage fraud case
was substantively unreasonable because the factors relied upon by the district court to increase the
sentence were already taken into account by the Guidelines calculations. United States v. Alam, No.
14-3169 (brief filed January 30, 2015)
G. Constitutional Issues
A. Fifth Amendment Due Process
In this child pornography case, the district court enhanced the defendant’s sentence based on a
finding, under a preponderance of the evidence standard, that the defendant committed an
uncharged abuse offense from twenty five years before the offense conduct in the case. Did this
violate the defendant’s due process rights. United States v. Mullins, No. 14-6191 (brief filed January 9,
2015)
B. Sixth Amendment Jury Trial
In this child pornography case, the district court enhanced the defendant’s sentence based on
uncharged allegations of abuse from twenty five years before the offense conduct in the case. Did
this violate the defendant’s right to a jury trial. United States v. Mullins, No. 14-6191 (brief filed
January 9, 2015)
XV. Speedy Trial
Whether the defendant’s statutory and constitutional rights to a speedy trial were violated when the
district court bifurcated the trial proceedings (by selecting a jury two months prior to the actual start
of trial) and did not begin trial either within the statutory time limits for a speedy trial or within a
constitutionally reasonable time period. United States v. Velarde, No. 14-8037 (fully briefed as of
December 1, 2014).
Whether the district court erred when it dismissed the indictment with prejudice because the delay
was primarily caused by the defendant. (government appeal). United States v. Koerber, No. 14-4107
(brief filed December 5, 2014)
Whether the district court erred when it concluded that the government’s motion to set a hearing for
purposes of selecting a trial date tolled the Speedy Trial clock pursuant to 18 U.S.C. § 3161(h)(1)(D).
United States v. Hicks, No. 14-1069 (argued January 20, 2015)
Whether the five-and-a-half year delay between indictment and trial violated the defendant’s
constitutional right to a speedy trial. United States v. Hicks, No. 14-1069 (argued January 20, 2015)
XVI. Standards of Review
A. Waiver
Whether the defendant waived a constructive-amendment-to-the-indictment claim because he failed
to raise it in the district court. United States v. Mann, No. 13-2214 (argued September 29, 2014) (Kelly,
Bacharach, Phillips).
Whether the defendant’s unconditional guilty plea waived his argument that the statute of conviction
violates the Second Amendment. United States v. Rangel-Hernandez, No. 14-7056 (gov’t brief filed
January 5, 2015)
Whether the defendant waives his evidentiary challenges to the admission of a contract in a fraud
conspiracy case because he failed to move to sever the case from a codefendant or request a limiting
instruction. United States v. Kupfer, No. 13-2189 (gov’t brief filed January 9, 2015)
Whether the government waives an argument in opposition of a motion to suppress if that argument
is not advanced below. United States v. Argueta-Mejia, No. 14-1244 (response brief filed January 12,
2015)
Whether the defendant waived a challenge to a special condition of supervised release because he
failed to challenge the imposition of the condition prior to revocation for his violation of that
condition. United States v. Helton, No. 14-7070 (gov’t brief filed January 21, 2015)
B. Forfeiture/Plain Error
Whether, despite no objection below, plain error review is inappropriate to review a district court’s
failure to permit allocution during sentencing on a revocation of supervised release where the district
court failed to give defense counsel or the defendant an opportunity to object prior to the
imposition of sentence. United States v. Craig, No. 14-3187 (brief filed December 2, 2014).
C. De Novo Review
Whether, despite no objection below, de novo review is the appropriate standard to review a district
court’s failure to permit allocution during sentencing on a revocation of supervised release. United
States v. Craig, No. 14-3187 (brief filed December 2, 2014).
XVII. Supervised Release
A. Revocation Issues
1. Sufficiency of the Evidence
Whether the evidence was insufficient to revoke supervised release based on the alleged commission
of a new crime – obstruction and resisting arrest – where the defendant’s conduct was an
involuntary reaction to being sprayed in the eyes with OC gas. United States v. James, No. 14-6169
(brief filed January 26, 2015)
B. Sentencing Issues
1. Procedural
Whether it was error, plain or otherwise, to deny the defendant his right of allocution during a
sentencing on a revocation of supervised release (see Fed.R.Crim.P. 32.1(b)(2)(E)). United States v.
Craig, No. 14-3187 (brief filed December 2, 2014).
Whether the 18-month consecutive sentence for a supervised release revocation must be vacated
because the unannounced transfer of supervised release from Texas to Kansas after the defendant
pleaded guilty in the underlying criminal case violated his due process rights (the government alleges
that the defendant appealed the wrong case, and, thus, the appeal must be dismissed). United States v.
Garcia-Chihuahua, No. 14-3109 (gov’t brief filed January 2, 2015)
Whether the imposition of inpatient treatment by a probation officer is an unlawful delegation of
authority, and, if so, whether the violation of this condition, and subsequent sentence imposed for
the violation, amounts to a procedurally unreasonable sentence (government asserts waiver). United
States v. Helton, No. 14-7070 (gov’t brief filed January 21, 2015)
Whether the 2-year term of supervised release was procedurally unreasonable because it was based
on the district court’s misunderstanding that a term of supervised release could not be extended.
United States v. Malik, No. 14-1367 (brief filed January 21, 2015)
Whether the district court failed to provide an adequate explanation for the statutory maximum 2year sentence where the district court only cited incapacitation as a basis for the sentence. United
States v. James, No. 14-6169 (brief filed January 26, 2015)
Whether the district court committed plain error when, without adequate explanation, it imposed a
10-year term of supervised release upon revocation, where the initial term of supervised release was
only 5 years. United States v. Allen, No. 14-2201 (brief filed February 2, 2015)
2. Substantive
Whether the 2-year term of supervised release was substantively unreasonable because of the
excessive time the defendant spent in pretrial detention and in a halfway house pending sentencing.
United States v. Malik, No. 14-1367 (brief filed January 21, 2015)
In this revocation of supervised release case involving drug use, whether the above-Guidelines-range
sentence of 24 months was substantively unreasonable. United States v. Helton, No. 14-7070 (gov’t
brief filed January 21, 2015)
Whether, upon revocation of supervised release in a bank robbery case, a 36-month statutory
maximum sentence, imposed consecutively to a 151-month term of imprisonment for a subsequent
bank robbery conviction, was substantively unreasonable because the court failed to consider the
defendant’s advanced age. United States v. Bartley, Nos. 14-1300 & 14-1305 (brief filed November 26,
2014).
Whether an above-Guidelines-range 14-month term of imprisonment was substantively
unreasonable in a revocation of supervised release case where the defendant committed 3 Grade C
violations. United States v. McManis, No. 14-1416 (gov’t brief filed January 23, 2015)
Whether a 12-month sentence for a supervised-release revocation was unreasonable where it was
based on the defendant’s association with a long-time friend who also had a felony conviction.
United States v. Osborn, No. 14-7081 (brief filed December 29, 2014)
Whether the above-range statutory maximum 2-year sentence was unreasonable where the
underlying offense conduct was the commission of a new crime (obstruction and resisting arrest).
United States v. James, No. 14-6169 (brief filed January 26, 2015)
C. Conditions of Supervised Release
Whether the district court erred when it imposed conditions that restricted the defendant’s ability to
hunt and fish (the defendant was convicted of illegal activities relating to hunting). United States v.
Rodebaugh, No. 13-1081 (brief filed December 5, 2014)
In 18 U.S.C. § 3583(d), Congress granted courts the authority to order, as a condition of supervised
release, a warrantless-search condition if the defendant has to register as a sex offender. Mr.
Flaugher does not have to register as a sex offender. Was it error for the district court to impose the
warrantless-search condition in this case? United States v. Flaugher, No. 14-3206 (brief filed December
31, 2014)
Whether the district court committed plain error when it imposed a search condition because the
condition is a greater deprivation of liberty than is reasonably necessary and is not reasonably related
to the relevant § 3553(a) factors. United States v. James, No. 14-6169 (brief filed January 26, 2015)
Whether the district court erred when it imposed as a special condition of supervised release
restrictions on the defendant’s communications with his own daughter, and whether the condition
amounts to an unlawful delegation of authority to the district court. United States v. Malik, No. 141367 (brief filed January 21, 2015)
Whether, in this SORNA case, the district court erred when it imposed as a special condition of
supervised release restrictions on the defendant’s contact with minor children, including his own
grandchildren, and whether the condition amounts to an unlawful delegation of authority to the
district court. United States v. Killman, No. 14-7072 (brief filed January 29, 2015)
Whether the standard condition that requires a defendant to answer all questions truthfully violates
the Fifth Amendment. United States v. Malik, No. 14-1367 (brief filed January 21, 2015)
Whether the standard condition that requires a defendant to support his dependents is
unconstitutionally vague and overbroad. United States v. Malik, No. 14-1367 (brief filed January 21,
2015
Whether the standard condition that requires a defendant to refrain from excessive use of alcohol is
unconstitutionally vague. United States v. Malik, No. 14-1367 (brief filed January 21, 2015)
Whether the standard condition that prohibits a defendant from frequenting places where drugs are
sold is unconstitutionally vague and overbroad. United States v. Malik, No. 14-1367 (brief filed
January 21, 2015)
Whether the standard condition that prohibits a defendant from associating with a felon is
unconstitutionally vague and overbroad. United States v. Malik, No. 14-1367 (brief filed January 21,
2015)
Whether the standard condition that requires a defendant to allow home visits by the probation
officer is unconstitutionally vague and overbroad. United States v. Malik, No. 14-1367 (brief filed
January 21, 2015)
Whether the standard condition that requires a defendant notify third parties of risks is
unconstitutionally vague and overbroad. United States v. Malik, No. 14-1367 (brief filed January 21,
2015)
Whether the standard condition that requires a defendant to provide access to requested
information is unconstitutionally vague and overbroad. United States v. Malik, No. 14-1367 (brief filed
January 21, 2015)
Whether, in this SORNA case, the district court erred when it imposed a special condition of
supervised release prohibiting the defendant from using a computer with Internet access (without
prior approval from probation), and whether this condition was an improper delegation of authority
to the probation office. United States v. Killman, No. 14-7072 (brief filed January 29, 2015)
Whether a special condition of supervised release prohibiting the possession of “sexually explicit
material,” as defined in 18 U.S.C. § 2256, involves a greater deprivation of liberty than is reasonably
necessary and infringes on First Amendment rights. United States v. Allen, No. 14-2201 (brief filed
February 2, 2015)
XVIII. Trial Practice and Evidence Issues
A. Closing Argument
Whether the district court erred when it did not declare a mistrial where the prosecutor misstated
the evidence in attacking the defendant’s credibility. United States v. Sorensen, No. 14-1366 (brief filed
December 8, 2014)
B. Confidential Informants
Whether the admission of evidence that referenced information provided by confidential informants
(which amounted to hearsay and a confrontation clause violation), and that the district court had
earlier instructed the government not to introduce at trial, violated the defendant’s right to a fair trial
and resulted in reversible error. United States v. Becknell, No. 13-3311 (argued September 30, 2014)
(Tymkovich, Ebel, and Gorsuch)
C. Confrontation Clause
Whether a 911 call reporting that the defendant and another person were transporting drugs was
admitted in violation of the Confrontation Clause. United States v. Edwards, No. 14-7028 (set for
argument on February 10, 2015).
Whether a 911 call reporting that the defendant was transporting drugs was admitted in violation of
the Confrontation Clause. United States v. Washington, No. 14-7017 (gov’t brief filed December 12,
2014)
Whether the introduction of gang certification evidence violated the defendant’s Confrontation
Clause rights. United States v. Hopkins, No. 13-5072 (consolidated with United States v. Hill, No. 145074 & United States v. Hill, No. 14-5084, and similar issue raised in those appeals) (argued
September 30, 2014) (Hartz, Phillips, McHugh).
Whether, in this production of child pornography case, the district court erred in restricting crossexamination of the victim’s prior sexual activities where the defense asserted that the victim
produced the images with a boyfriend and fabricated the charges so that she could continue with the
relationship (the defendant is her father). United States v. Gutierrez, No. 14-2129 (brief filed January
28, 2015)
Whether, in this production of child pornography case, testimony of a government case agent that
the materials used to produce the pornography were “made in China” violated the defendant’s
Confrontation rights because the testimony was based solely on “made in” labels on the materials
(and the agent did not put those labels on the materials) (plain error review) United States v. Gutierrez,
No. 14-2129 (brief filed January 28, 2015)
D. Cumulative Error
Whether cumulative error, including a confrontation clause/hearsay violation, the introduction of
gang evidence, and a double jeopardy violation, denied the defendant a fair trial. United States v.
Hopkins, No. 13-5072 (consolidated with United States v. Hill, No. 14-5074 & United States v. Hill, No.
14-5084, similar issue raised in former appeal) (argued September 30, 2014) (Hartz, Phillips,
McHugh).
Whether the trial errors, including improper jury instructions and prosecutorial misconduct during
closing argument, denied the defendant a fair trial. United States v. Sorensen, No. 14-1366 (brief filed
December 8, 2014)
Whether the trial errors, including missing jury instructions and the admission of prejudicial
evidence, denied the defendant a fair trial. United States v. Redifer, No. 14-3031 (brief filed December
15, 2014).
E. Expert Testimony (Rules, 702, 703, 704)
Whether the officer committed reversible error under Rule 704(b) when he gave his opinion that a
firearm was related to drug dealing and that seized money amounted to drug proceeds. United States
v. Becknell, No. 13-3311 (argued September 30, 2014) (Tymkovich, Ebel, and Gorsuch)
Whether the government elicited (unqualified) expert testimony on cell phone tower data despite a
pretrial ruling prohibiting such testimony. United States v. Hill, No. 14-5084 (defendant concedes that
this argument is foreclosed by precedent) (consolidated with United States v. Hopkins, No. 13-5072 &
United States v. Hill, No. 14-5074) (argued September 30, 2014) (Hartz, Phillips, McHugh).
Whether the district court erred when it allowed the government to introduce expert opinion on the
defendant’s credibility. United States v. Beierle, No. 14-8049 (brief filed December 12, 2014)
Whether it was reversible error to allow a DNA expert to testify that she could not determine
whether or not the defendant possessed the gun, as this testimony inferred that the defendant
possessed the gun. United States v. Allen, No. 14-8064 (brief filed December 17, 2014)
An officer testified that a coconspirator’s statements against the defendant were “extremely
credible.” Was this reversible error. United States v. Brown, No. 14-3105 (brief filed January 23, 2015)
Whether the district court committed plain error when it failed to hold a Daubert hearing on the
expert’s qualifications and the metadata of pornographic images in this production of child
pornography case. United States v. Gutierrez, No. 14-2129 (brief filed January 28, 2015)
F. Eyewitness Identification Testimony
Whether a photo lineup was unnecessarily suggestive because the officer first showed the identifier a
picture of the actual suspect, then six other photos of the suspect and other individuals (who did not
resemble the defendant), in violation of the defendant’s due process rights. United States v. Hopkins,
No. 13-5072 (consolidated with United States v. Hill, No. 14-5074 & United States v. Hill, No. 14-5084,
and similar issue raised in those appeals) (argued September 30, 2014) (Hartz, Phillips, McHugh).
G. Hearsay (Rule 801)
1. 911 Call
Whether a 911 call reporting that the defendant and another person were transporting drugs was
admitted in violation of Rule 801 and 802’s prohibition on hearsay. United States v. Edwards, No. 147028 (set for argument on February 10, 2015).
Whether a 911 call reporting that the defendant was transporting drugs was admitted in violation of
the hearsay rules. United States v. Washington, No. 14-7017 (gov’t brief filed December 12, 2014)
2. Business Records
b. Bank Records
Whether, in this bank fraud case, the district court erred when it admitted testimony from a
government agent that the bank was federally insured where the agent was not the custodian of the
records and without any evidence that the records were made in the normal course of business.
United States v. Iverson, No. 14-8071 (brief filed February 2, 2015)
b. Cell Phone Tower Data
Whether cell phone tower data: (1) is testimonial for purposes of the Confrontation Clause; and (2)
does not qualify as a business record under Rule 803(6). United States v. Hill, No. 14-5084 (defendant
concedes that this argument is foreclosed by precedent) (consolidated with United States v. Hopkins,
No. 13-5072 & United States v. Hill, No. 14-5074) (argued September 30, 2014) (Hartz, Phillips,
McHugh).
c. Gang Certifications
Whether gang certification evidence qualifies under the business record exception to the hearsay
rule, and particularly when the government does not call the author of the certification, who
happens to be law enforcement personnel. United States v. Hopkins, No. 13-5072 (consolidated with
United States v. Hill, No. 14-5074 & United States v. Hill, No. 14-5084, and similar issue raised in those
appeals) (argued September 30, 2014) (Hartz, Phillips, McHugh).
3. Not Offered for the Truth
Whether the district court erred when it excluded cross-examination of a witness on whether that
witness was informed that allegations against the defendant could not be substantiated without
corroboration, where the evidence was relevant to show the witness’s state of mind, and not for the
truth of the statements. United States v. Gutierrez, No. 14-2129 (brief filed January 28, 2015)
4. Out of Court Documents
Whether, in this bank fraud case, the district court erred when it admitted testimony from a
government witness that the bank was federally insured where that testimony was based on out-ofcourt documents (an FDIC certificate) not admitted at trial. United States v. Iverson, No. 14-8071 (brief
filed February 2, 2015)
H. Jury Instructions
1. Aiding and Abetting
Whether the district court committed plain error when it omitted an element of aiding and abetting
from the jury instructions (that someone else committed the crime). United States v. Washington, No.
14-7017 (gov’t brief filed December 12, 2014)
Whether the district court erred when it omitted an essential element of aiding and abetting in its
jury instructions (whether someone else committed the underlying crime). United States v. Edwards,
No. 14-7028 (set for argument on February 10, 2015).
2. Deliberate Avoidance
Whether the district court erred when it gave a deliberate avoidance instruction because the
defendant never denied knowledge of any act. United States v. Sorensen, No. 14-1366 (brief filed
December 8, 2014)
3. Elements
Whether the district court committed plain reversible error in this mail fraud case when if failed to
instruct the jury that the government had to prove a specific intent to defraud. United States v. Kalu,
No. 14-1068 (brief filed January 14, 2015)
Whether the district court committed reversible error when it instructed the jury that, to convict the
defendant of encouraging an alien to reside in the United States (8 U.S.C. § 1324), the government
had to prove that the defendant knew or should have known, instead of knew or acted in reckless
disregard of the fact, that the alien’s entry was illegal. United States v. Kalu, No. 14-1068 (brief filed
January 14, 2015)
Whether the district court committed reversible error when it instructed the jury that, to convict the
defendant of forced labor, his threats had to a similarly-situated reasonable person to perform the
labor, rather than that his threats had to “compel” the person to perform the labor. United States v.
Kalu, No. 14-1068 (brief filed January 14, 2015)
4. Flight
Whether, in this gun case, the district court committed plain error: (1) in giving a flight instruction
where the defendant admitted that he fled in light of his possession of methamphetamine (and not
the gun); and (2) in instructing the jury that flight “is the consummate act of evasion.” United States v.
Mendez No. 14-4078 (gov’t brief filed January 28, 2015)
5. Guilt by Association
Whether it was error not to instruct the jury in a drug conspiracy case on the insufficiency of guilt by
association. United States v. Redifer, No. 14-3031 (brief filed December 15, 2014).
6. Investigative Techniques
Whether an instruction informing the jury that law enforcement techniques are “not your concern,”
and that the government has no obligation to use certain techniques, was reversible plain error (the
government argues that the defendant invited the error, and, thus, cannot complain about it on
appeal). United States v. Mendez No. 14-4078 (gov’t brief filed January 28, 2015)
7. Knowledge
Whether the district court erred in refusing to instruct the jury that underreporting income, taking
improper deductions, and not filing tax returns can only be criminally corrupt if the defendant
knowingly violates the law. United States v. Sorensen, No. 14-1366 (brief filed December 8, 2014)
8. Prior Bad Acts
Whether the district court erred in failing to instruct the jury that Rule 404(b) evidence is not to be
used as substantive evidence of the defendant’s guilt. United States v. Redifer, No. 14-3031 (brief filed
December 15, 2014).
9. Proof
Whether the district court erred when it instructed the jury that it could convict based only on one
means alleged in the indictment where several of the means alleged were legally insufficient. United
States v. Sorensen, No. 14-1366 (brief filed December 8, 2014)
10. Theory of Defense/Affirmative Defense
Whether the district court erred when it refused to instruct the jury on the defendant’s theory of
defense (a joint-buyer relationship in a drug conspiracy case) United States v. Redifer, No. 14-3031
(brief filed December 15, 2014).
Whether the district court committed plain error when it failed to instruct the jury on the affirmative
defense found at 18 U.S.C. § 1512(e) (witness tampering statute). United States v. Sparks, No. 14-3120
(government’s brief filed on December 16, 2014)
Whether the district court erred when it refused to instruct the jury on the defendant’s theory of
defense in that the court refused to give the defendant’s proposed instruction on “willfulness” in a
false tax returns case (the ultimate defense was good faith) (the government argues that any error
was harmless). United States v. Kupfer, No. 13-2138 (gov’t brief filed January 9, 2015)
I. Mistrial
Whether the district court erred when it denied the defendant’s motion for a mistrial where
government witnesses testified about two unrelated criminal incidents despite the district court’s
pretrial exclusion of this very evidence. United States v. Redifer, No. 14-3031 (brief filed December 15,
2014).
J. Prior Convictions
Whether the admission of a prior drug conviction, at a drug conspiracy trial, as intrinsic evidence of
the offense charged amounted to reversible error. United States v. Redifer, No. 14-3031 (brief filed
December 15, 2014).
K. Prosecutorial Misconduct
Whether the district court committed plain error when it permitted the prosecutor to elicit evidence
contradicting a stipulation entered into by the parties (the stipulation involved the manner in which
agents counted marijuana plants; the primary issue at trial was the number of plants)? United States v.
Obregon-Perez, No. 14-4067 (brief filed December 10, 2014)
Whether the government committed prosecutorial misconduct during closing argument by
encouraging the jury to consider a 911 call for the truth of the matter asserted, even though the call
was admitted to show why police stopped the vehicle. United States v. Washington, No. 14-7017 (gov’t
brief filed December 12, 2014)
Whether the government improperly bolstered a government witness’s testimony by asking
witnesses if they or others were telling, or had already told, the truth. United States v. Allen, No. 148064 (brief filed December 17, 2014)
Whether the district court erred in denying the defendant’s motions for new trial where the
government failed to disclose to the defendant that the government intended to reward its main
witness at sentencing for his testimony in an unrelated state murder prosecution (Brady and Napue
claims). United States v. Ramirez, No. 14-3039 (case argued January 20, 2015)
L. Relevance (Rules 401, 402, 403)
Whether testimony about a photo identification, where the identifier identified the defendant from
six photos as the individual shown in a surveillance photo of the robbery, was improperly admitted
because the evidence is irrelevant. United States v. Hopkins, No. 13-5072 (consolidated with United
States v. Hill, No. 14-5074 & United States v. Hill, No. 14-5084, and similar issue raised in those
appeals) (argued September 30, 2014) (Hartz, Phillips, McHugh).
Whether it was reversible error to allow a DNA expert to testify that she could not determine
whether or not the defendant possessed the gun, as this testimony was irrelevant and prejudicial.
United States v. Allen, No. 14-8064 (brief filed December 17, 2014)
In a fraud conspiracy case, whether the district court erred when it admitted evidence of a contract
as intrinsic evidence because the defendant had nothing to do with the contract, and, thus, it was
irrelevant (the defendant also disputes that the contract was intrinsic to the charged conspiracy) (the
government argues harmless error and waiver). United States v. Kupfer, No. 13-2189 (gov’t brief filed
January 9, 2015)
M. Right to Be Present
Whether the defendant’s absence from a mid-trial hearing where the government disclosed its
strategy for impeaching the defendant violated his Constitutional right to be present at all critical
stages because it affected his decision on whether or not to testify. United States v. Beierle, No. 148049 (brief filed December 12, 2014)
N. Right to Present Defense
Whether the district court committed reversible error when it refused to admit photographs of a
coconspirator showing the coconspirator’s lavish lifestyle. United States v. Brown, No. 14-3105 (brief
filed January 23, 2015)
Whether, in this production of child pornography case, the defendant was denied his Constitutional
right to present a defense because the government failed to put him on notice of the actual dates of
production (thus preventing him from establishing an alibi defense). United States v. Gutierrez, No. 142129 (brief filed January 28, 2015)
O. Rule 403 (prejudice)
1. Contracts
In a fraud conspiracy case, whether the district court erred when it admitted evidence of a contract
entered into by the defendant’s wife because it associated the defendant with the contract and
caused him substantial prejudice (the government argues harmless error and waiver). United States v.
Kupfer, No. 13-2189 (gov’t brief filed January 9, 2015)
1. DNA evidence
Whether it was reversible error to allow a DNA expert to testify that she could not determine
whether or not the defendant possessed the gun, as this testimony was irrelevant and prejudicial.
United States v. Allen, No. 14-8064 (brief filed December 17, 2014)
2. Gang Evidence
Whether the introduction of gang evidence in a bank robbery conspiracy trial was reversible error.
United States v. Hopkins, No. 13-5072 (consolidated with United States v. Hill, No. 14-5074 & United
States v. Hill, No. 14-5084, and similar issue raised in those appeals) (argued September 30, 2014)
(Hartz, Phillips, McHugh).
Whether it was reversible error to allow prejudicial testimony of the defendant’s involvement in a
violent gang to prove motive, where the government stated in opening argument that motive was
irrelevant. United States v. Allen, No. 14-8064 (brief filed December 17, 2014)
3. Photographs
Whether the admission of a photograph showing the defendant and two coconspirators with guns
was unfairly prejudicial. United States v. Redifer, No. 14-3031 (brief filed December 15, 2014).
4. Prior Convictions
Whether the admission of a prior drug conviction, at a drug conspiracy trial, was unfairly prejudicial.
United States v. Redifer, No. 14-3031 (brief filed December 15, 2014).
Whether the admission of a prior drug conviction in a drug conspiracy trial was unfairly prejudicial
where the prior conviction took place during the dates of the conspiracy. United States v. Brown, No.
14-3105 (brief filed January 23, 2015)
5. Sexual Assault Evidence
Whether the district court should have excluded evidence related to touching of the lower
back/upper buttocks region, even if admissible under Rule 413, as too prejudicial. United States v.
Pascal, No. 14-4091 (brief filed December 8, 2014)
P. Rule 404(b)
In a fraud conspiracy case, whether the district court erred when it admitted evidence of two
contracts to show “knowledge, intent, preparation, and absence of mistake” where the defendant
had nothing to do with the contracts (the government argues harmless error). United States v. Kupfer,
No. 13-2189 (gov’t brief filed January 9, 2015)
Q. Rules 412, 413 & 414 (sexual assault evidence)
Whether touching the lower back/upper buttocks region constitutes sexual contact or attempted
sexual assault to allow for the admission of the conduct under Rule 413. United States v. Pascal, No.
14-4091 (brief filed December 8, 2014)
Whether, in this production of child pornography case, the district court erred in restricting crossexamination of the victim’s prior sexual activities where the defense asserted that the victim
produced the images with a boyfriend and fabricated the charges so that she could continue with the
relationship (the defendant is her father). United States v. Gutierrez, No. 14-2129 (brief filed January
28, 2015)
R. Rule 1002 (Best Evidence Rule)
Whether, under plain error review, it was improper to admit testimony from a government agent
that a bank was insured, rather than admit the actual certificates of insurance (bank fraud case).
United States v. Iverson, No. 14-8071 (brief filed February 2, 2015)
S. Surrebuttal
Whether the district court erred when it refused to allow the defendant to put on surrebuttal, which
was necessary to refute the government’s credibility attack on a defense witness during its case in
rebuttal. United States v. Sorensen, No. 14-1366 (brief filed December 8, 2014)
XIV. Void for Vagueness
Whether Colorado State Wildlife Regulations governing the use of bait to attract wildlife are
unconstitutionally vague (as applied or facially). United States v. Rodebaugh, No. 13-1081 (brief filed
December 5, 2014).
XX. Miscellaneous
1. Forum Shopping
Whether the government engaged in impermissible forum shopping when it filed a second case
(assigned to a different judge), then dismissed the first case, rather than filing a superseding
indictment in the first case. United States v. Deloera-Escolera, No. 14-5143 (brief filed January 21, 2015)
2. Disqualification of Government Counsel
Whether the district court erred in failing to disqualify the United States Attorney’s Office for the
District of Kansas because the defendant, some ten years earlier, had burglarized one of the
attorneys homes (that attorney was not involved in the federal prosecution). United States v. Marquez,
No. 14-3136 (gov’t brief filed February 3, 2015)