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Short Wins – The Smurfing Edition

The big news in this edition of Short Wins is United States v. Abair – a simply crazy Seventh Circuit.

I already wrote about it for a general legal audience on Above the Law (Inspector Javert Goes Smurfing in Indiana) – for our purposes, the legal issue is whether she was appropriately crossed on statements in her tax returns or student loan applications.

I had a case years ago where the AUSA and I litigated whether he could use similar statements in cross if my client testified. We lost. Happily, we weren’t able to appeal the decision, but it’s freakin’ insane the way this stuff comes in sometimes. Abair is a nice step in moving the law in the right way.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Diaz-Rodriguez, First Circuit: Appellant was convicted at trial of aiding and abetting interference with commerce by threats of violence and one count of using a firearm during the commission of a crime of violence. Those convictions were vacated because Appellant was denied his Sixth Amendment Right to Counsel when it forbade him from retaining new counsel during trial without inquiring into his conflict with his present counsel.

Defense Attorney: Rafael F. Castro Lang
2. United States v. Abair, Seventh Circuit: During Appellant’s trial for structuring financial transactions in order to evade federal reporting requirements, the prosecutor cross-examined Appellant about alleged false statements on a tax return and student financial aid applications. Because the government lacked a good faith basis for believing Appellant had lied on those documents, the Seventh Circuit reversed the conviction and remanded for a new trial. The Seventh Circuit determined that the information elicited during that cross-examination was prejudicial and harmful error.

3. United States v. Cabrera-Gutierrez, Ninth Circuit: The Court withdrew its June 3, 2013 Opinion and filed this Amended Opinion. The Court held that the district court erred in sentencing Appellant as a Tier III sex offender based on a prior conviction under an Oregon statute. The district court improperly applied the categorical approach to determine how that prior conviction would impact Appellant’s sentencing enhancement, so Appellant’s sentence was vacated.

Defense Attorney: Rebecca L. Pennell
4. United States v. Cortes, Ninth Circuit: Appellant was tried for drug conspiracy charges after he was arrested during an undercover reverse sting operation. The conviction was reversed because the district court gave the jury an improper jury instruction on an entrapment defense. In giving the jury instruction, the district court erred in excluding that drugs or any profit from the sale of drugs could be a basis for inducement.

Defense Attorney: Gary P. Burcham
5. United States v. Montes-Ruiz, Ninth Circuit: The district court erred in sentencing Appellant by ordering a sentence which was to run consecutively to an anticipated, but not-yet-imposed, federal sentence in a separate case. Since it is impermissible to impose a sentence which will run consecutively to a hypothetical sentence, Appellant’s sentence was vacated and the case remanded for resentencing.

Defense Counsel: Devin Burstein
6. United States v. Peyton, D.C. Circuit: The trial court admitted evidence gathered from Appellant’s apartment as a part of two separate warrantless searches. Because the first warrantless search was not lawfully permitted, the convictions were vacated and remanded.

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