Short Wins - The Election, Conspiracies, and Sentencing Remands

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It's another relatively slow week in the federal appeals courts of our great nation. Perhaps folks are too saturated with election coverage to issue opinions.

Of the three courts that issued opinions this week, only one is in a battleground states (or quasi battleground state) - the Tenth Circuit in Colorado.

The Eleventh Circuit based in Georgia and the Fifth Circuit in New Orleans surely are not drowning in direct mail pieces or television ads.

Perhaps their productivity isn't crippled by constant refreshing of Real Clear Politics.

And, perhaps that explains why we haven't heard from the Sixth Circuit -- normally a prolific creator of news for this blog -- which is based in the uber-battleground state of Ohio.

In any event, there are a few great cases from the last week, especially the Tenth Circuit's multiplicity opinion in United States v. Frierson. As the feds use conspiracy charges ever more frequently, multiplicity arguments are a good way to reign in the metaphysical problems of profligate conspiracy theories (e.g., If a thousand angels are dancing together on the head of a pin, how many conspiracies to dance together can there be?).

And, looking forward, there's a huge event on Tuesday. That's right -- the Federal Public Defender for DC, A.J. Kramer, will be arguing a withdrawal from a conspiracy case in the Supreme Court. I would expect there will be coverage lots of places, including here.

Also, if you're an undecided voter and didn't know it, the election is Tuesday.

With that, on to the victories:

1155650_berlin_siegessule.jpg1. United States v. Frierson, Tenth Circuit: In case involving two convictions for conspiracy to distribute crack cocaine, appellant's convictions were plainly multiplicitous because the jury was not instructed that they could not find appellant guilty of more than one count of conspiracy unless they were convinced beyond a reasonable doubt that he entered into two separate agreements to violate the law. Because neither the instructions nor the government suggested that the first conspiracy count was anything other than part of the larger conspiracy alleged in the second, the Tenth Circuit remanded with instructions to vacate appellant's conviction and sentence on either the first or the second conspiracy counts.

2. United States v. Murray et al, Fifth Circuit: Three defendants were convicted of crimes arising out of their participation in a Ponzi scheme and, at the time of sentencing, were not ordered to pay restitution. Because the district court sentenced the defendants without ordering restitution and found that, from the facts on the record, 18 U.S.C. § 3663A(c)(3) applied, the "shall order" provision in § 3663A(a) did not authorize the court to reopen its judgment more than sixth months later to add an order of restitution.

3. United States v. Miller, Eighth Circuit: In case arising out of a husband and wife's methamphetamine-related convictions, the district court committed two procedural sentencing errors in determining that the wife's advisory guidelines sentencing range was 188-235 months in prison: (1) the court failed to apply Guideline § 2D1.1(a)(5), which may have substantially increased her advisory guidelines range; and (2) the "confused sentencing record" casts doubt on the court's drug quantity finding. For these reasons, the wife's sentence was vacated and remanded for resentencing.

Published In: Criminal Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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