Circuit Watcher

07-1479 U.S. v. Soares
Before Boudin, Chief Judge, Torruella, Circuit Judge, and Stahl, Senior Circuit Judge.
TORRUELLA, Circuit Judge. Michael Soares was the passenger in a car that the police stopped in a heavy crime area, late at night, for driving without headlights. During the course of the stop, Soares was removed from the car by the police and pat-frisked. A loaded hand-gun was found on his person. Soares argues that the police pat-frisked him in violation of the Fourth Amendment. Soares’s motion to suppress the hand-gun was denied by the district court, and he entered a conditional plea of guilty to being a felon in possession of a hand-gun under 18 U.S.C. § 922(g)(1). He now appeals the district court’s denial of his motion to suppress. After careful consideration, we affirm. … U.S. v. Soares.

07-1244 U.S. v. Girouard
Before Lynch, Circuit Judge, Stahl, Senior Circuit Judge, and Howard, Circuit Judge.
HOWARD, Circuit Judge. Margaret Girouard was convicted by a jury of one count of consumer product tampering in violation of 18 U.S.C. § 1365. On appeal, she claims the empanelment of the jury that convicted her was tainted by religious discrimination in violation of the Constitution. The district court implicitly found that Girouard had failed to establish a prima facie case that the prosecutor’s peremptory strike was motivated by discriminatory animus. Finding no clear error in this determination, we affirm the conviction. … U.S. v. Girouard.

06-2006, 06-2007 U.S. v. Page
Before Lipez, Circuit Judge, Cyr, Senior Circuit Judge, and Howard, Circuit Judge.
CYR, Senior Circuit Judge. Andre Page and Michael E. Green appeal from their judgments of conviction for possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and conspiracy, id. § 846. We affirm. … U.S. v. Page

07-2164 U.S. v. Piesak
Before Lipez and Howard, Circuit Judges, and Besosa,¹ District Judge.
HOWARD, Circuit Judge. After a three-day trial, a jury convicted Diana Piesak of attempting to manufacture ecstasy in violation of 21 U.S.C. § 846. The district court sentenced Piesak to 18 months’ imprisonment and two years’ supervised release. In this appeal, Piesak argues that the evidence was not sufficient to support a conviction. We disagree. Evidence presented at trial showed that Piesak: (1) acquired ingredients necessary to manufacture ecstacy; (2) researched, obtained, and actively studied ecstasy recipes; and (3) acquired, assembled and tested equipment used to manufacture ecstacy. This evidence was sufficient to support the conviction. … U.S. v. Piesak.

1. Of the District of Puerto Rico, sitting by designation. [↩]

06-2550 U.S. v. Colón-Díaz
Before Torruella and Howard, Circuit Judges, and Smith,¹ District Judge.
TORRUELLA, Circuit Judge. A jury convicted Edwin Colón-Díaz (”Colón”) on five counts of drug offenses under 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. He appeals these convictions, claiming that the district court committed a number of errors that, in the aggregate, constituted reversible error under the cumulative error doctrine articulated in United States v. Sepúlveda, 15 F.3d 1161, 1196 (1st Cir. 1993). After thoroughly reviewing the record and considering the parties’ arguments, we affirm Colón’s convictions. … U.S. v. Colón-Díaz.

1. Of the District of Rhode Island, sitting by designation. [↩]

06-1058, 06-1060, 06-1061 U.S. v. Lachman
Before Boudin, Chief Judge, Selya, Senior Circuit Judge, and Howard, Circuit Judge.
BOUDIN, Chief Judge. This case, arising from defendants’ convictions on charges of violating and conspiring to violate the Export Administration Act of 1979 (”EAA”) and its implementing regulations, is before us for the third time. The facts and earlier procedural history are recounted in United States v. Lachman, 387 F.3d 42, 46-49 (1st Cir. 2004) (”Lachman II”); United States v. Lachman, 48 F.3d 586, 588 (1st Cir. 1995) (”Lachman I”); and United States v. Lachman, 278 F. Supp. 2d 68, 73-74 (D. Mass. 2003). … Now before us are Lachman’s claims that the jury’s verdict was not supported by sufficient evidence of his scienter and that the district court erred in denying his motion for a new trial based on the alleged Rule 44(c) violation. In addition, Lachman and the corporate defendants appeal from the denial of their motion for a new trial based on their proffer of newly discovered evidence, including the supposed Brady evidence. We discuss the sufficiency claim first, then the new evidence and Brady issues and finally the claim based on Rule 44(c). … Affirmed. U.S. v. Lachman.

05-4222 U.S. v. Thomas
Before POSNER, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. A jury convicted Terry Thomas of possessing and conspiring to possess heroin and crack cocaine with intent to distribute. Thomas asks us to reverse his convictions on the grounds that (1) the trial evidence established multiple conspiracies at variance with the single charged conspiracy; (2) the federal prosecution was vindictive because the grand jury returned the indictment against him while he was under state charges for the same conduct; and (3) the government’s closing remarks about the seriousness of the case and the “burden” of living in a drug-infested neighborhood deprived him of a fair trial. He also challenges his 360-month sentence on the theory that the district court mis-applied the career offender sentencing guideline and imposed an unreasonable sentence. We reject these arguments and affirm Thomas’s convictions and sentence. … U.S. v. Thomas.

05-3904 U.S. v. Seymour
Before BAUER, FLAUM, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Defendants-Appellants Andre Seymour, Artrez Nyroby Seymour (“Nyroby Seymour”), Kent Clark, Andre Lawrence, Stacia Smith, and Troy Lawrence (collectively, the “Defendants”) appeal their respective sentences, claiming that their Sixth Amendment rights were violated when the district court sentenced all Defendants under 21 U.S.C. § 841(b)(1)(A) without having the jury make individualized findings regarding the quantities of drugs reasonably foreseeable to each defendant. Defendant Stacia Smith also asserts that the district court erred by not suppressing a gun found in Smith’s possession during a January 2002 traffic stop, and that the district court abused its discretion when it denied her motion for a mistrial on the gun-related charge. In addition, Smith contends that there was insufficient evidence to support her conviction on the gun-related charge. Defendant Andre Lawrence also appeals his conviction on the gun-related charge, claiming the evidence was insufficient to support his conviction. For the following reasons, we affirm. … U.S. v. Seymour.

07-2028 U.S. v. Hernandez-Hernandez
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge. At a bar in Palomas, Mexico, Alfredo Hernandez-Hernandez, a Mexican citizen twice deported from the United States, consumed a sufficient amount of alcohol and marijuana to blackout. The next thing he knew, Mr. Hernandez was in the United States without any recollection how he got there and, in short order, arrested for illegally reentering the country. Today, we are asked to decide whether the district court’s decision to exclude from trial evidence of Mr. Hernandez’s intoxication and resulting amnesia violated his constitutional right to present a defense. We hold that it did not, and so affirm the district court’s judgment. … U.S. v. Hernandez-Hernandez.

07-1176 U.S. v. Sanders
Before POSNER, FLAUM, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Defendant-Appellant DeAngelo Sanders was indicted on the charges of possession of an unregistered firearm in violation of 26 U.S.C. §§ 5845, 5861(d) and 5871, and possession of a firearm as a felon in contravention of 18 U.S.C. §§ 922(g)(1) and 924(e)(2)(B)(i) and (ii). Following a trial, a jury found Sanders guilty on both counts. The district court sentenced Sanders to 295 months’ imprisonment on Count 1 and 120 months on Count 2, to be served concurrently. Sanders now appeals his conviction and sentence, and we affirm. … U.S. v. Sanders.

07-1132, 07-1152 U.S. v. Fiasche
Before FLAUM, WOOD, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Two Antonios—Vitagliano and Fiasche—entered conditional guilty pleas to charges that they conspired to possess, with intent to distribute, various controlled substances, namely, methylenedioxy-methamphetamine (MDMA or ecstasy), methylenedioxy-amphetamine (MDA), and marijuana. They now appeal their convictions, arguing that their motions to suppress evidence were wrongly denied. … The motions to suppress were correctly denied and the judgments of conviction are AFFIRMED. U.S. v. Fiasche.

07-1421 Adkins v. Wolever
Before: MARTIN and SUTTON, Circuit Judges; OBERDORFER, District Judge.¹
BOYCE F. MARTIN, JR., Circuit Judge. Kenneth Ray Adkins brought an action in federal court against Basil Wolever, a guard at the Ionia Maximum Correctional Facility in Ionia, Michigan. Adkins alleges that Wolever assaulted him in his cell and caused serious injuries. At trial, Adkins asked the district court for an instruction on the alleged spoliation of the film and photographic evidence of the alleged assault, which Adkins maintains was destroyed in contravention of prison policy. The district court denied the instruction, finding that Michigan law did not provide for a third-party spoliation sanction. Because the district court did not abuse its discretion under the present law of our Circuit, we AFFIRM the verdict, along with the hope that an en banc panel will change this law to recognize the power of the federal courts to order such sanctions in appropriate circumstances. … Adkins v. Wolever.

1. The Honorable Louis F. Oberdorfer, Senior United States District Judge for the District of Columbia, sitting by designation. [↩]

07-1190 U.S. v. Belton
Before Lynch, Circuit Judge, Campbell and Selya, Senior Circuit Judges.
CAMPBELL, Senior Circuit Judge. Appellant Bruce Belton appeals from his convictions for drug trafficking, drug conspiracy, and multiple weapons charges following a jury trial in the United State District Court for the District of New Hampshire. Belton challenges the court’s denial of his motion to suppress evidence of drugs, weapons and cash found in his Franklin, New Hampshire residence on the ground that the affidavit submitted in support of the request for the search warrant contained material omissions. Belton also contends that the court violated the Speedy Trial Act. We affirm the convictions. … U.S. v. Belton.

07-10233 U.S. v. Gianelli
Before: William C. Canby, Jr., David R. Thompson, and Milan D. Smith, Jr., Circuit Judges.
THOMPSON, Senior Circuit Judge: In May of 1987, Ronald J. Gianelli (“Gianelli”) pleaded guilty to one count of mail fraud, 18 U.S.C. § 1341 (“mail fraud”), in the Northern District of California. As part of his sentence he was ordered to pay restitution to the federal government in the amount of $125,000. Gianelli did not appeal that judgment.
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Gianelli now appeals a May 2007 district court order reinstating an October 17, 2001 Order Imposing Payment Plan aimed at collecting the remaining amount of restitution owed. Gianelli contends that the government is barred from enforcing the restitution judgment because ten years from the date of that judgment passed on May 13, 1997, and California state law precludes enforcement of a judgment after that period of time. He further argues that the original $125,000 restitution amount was improper because it was not predicated upon the government’s actual loss, as required by Hughey v. United States, 495 U.S. 411 (1990).
We have jurisdiction under 28 U.S.C. § 1291. We conclude that Gianelli waived the right to appeal the amount of the restitution order by failing to file a direct appeal, and we affirm the district court’s May 1, 2007 order reinstating the October 17, 2001 payment plan. … U.S. v. Gianelli.

06-30596 U.S. v. Davenport
Before: William C. Canby, Jr., Susan P. Graber, and Ronald M. Gould, Circuit Judges.
GOULD, Circuit Judge: Winston Davenport appeals the district court’s denial of Davenport’s motion to withdraw his guilty plea and the sentence that the district court imposed on him for one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). After the district court denied Davenport’s motion to withdraw his guilty plea, Davenport received a 78-month sentence of incarceration for each of the two counts, to be served concurrently, as well as concurrent life terms of supervised release for each count.
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In this opinion we address whether Davenport’s conviction for both 18 U.S.C. § 2252A(a)(2), or receipt of child pornography, and 18 U.S.C. § 2252A(a)(5)(B), or possession of child pornography, offends double jeopardy when the conduct underlying both offenses is the same.¹ We have jurisdiction pursuant to 28 U.S.C. § 1291, and we determine that Davenport’s simultaneous conviction for both receipt and possession of child pornography violates the Fifth Amendment’s prohibition on double jeopardy. We reverse and remand to the district court for further proceedings consistent with this opinion. … U.S. v. Davenport.

1. Davenport’s other claims relating to the denial of his motion to withdraw his guilty plea and to his sentence are the subject of a separate, unpublished memorandum disposition filed contemporaneously with this opinion. [↩]

07-11206 Devine v. U.S.
Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.
PER CURIAM: William R. Devine, a federal prisoner, appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence. We granted a certificate of appealability on the following issue: “Whether the district court erred in finding that appellant’s counsel was not deficient for failing to file a direct appeal, in light of Thompson v. United States, 481 F.3d 1297 (11th Cir. 2007).”¹ Devine argues that counsel did not adequately consult with Devine about his appellate rights. Further, Devine argues that he demonstrated an interest in an appeal, and thus counsel had a duty to consult with him regarding an appeal. Finally, he argues that he was prejudiced as a result of counsel failing to consult with him regarding an appeal. …the judgment of the district court is AFFIRMED. Devine v. U.S.

1. After this appeal was taken, this Court sua sponte withdrew the opinion in Thompson and replaced it with another opinion, Thompson v. United States, 504 F.3d 1203 (11th Cir. 2007). [↩]

07-30011 U.S. v. Soto
Before: William C. Canby, Jr., Susan P. Graber, and Ronald M. Gould, Circuit Judges.
The petition for panel rehearing is GRANTED. The memorandum disposition filed on November 28, 2007, is withdrawn and the Clerk is ordered to file the attached opinion in its place. New petitions for rehearing and petitions for rehearing en banc may be filed.
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PER CURIAM: Defendant Jose Martin Soto appeals his conviction for possession of methamphetamine with intent to distribute, 21 U.S.C. § 841(a). He argues that the district court violated Carter v. Kentucky, 450 U.S. 288 (1981), and James v. Kentucky, 466 U.S. 341 (1984), by failing to give his requested instruction that the jury make no adverse inference from his constitutionally protected choice not to testify. We hold that any error was harmless beyond a reasonable doubt. We also reject Defendant’s other challenge to the jury instructions. We therefore affirm. … U.S. v. Soto.

06-2781 U.S. v. Ayala-Tapia
Before Boudin, Chief Judge, Lynch, Circuit Judge, and Keenan,¹ Senior District Judge.
BOUDIN, Chief Judge. Justina Ayala-Tapia traveled by overnight ferry from the Dominican Republic to Puerto Rico, arriving at the Mayaguez port on February 1, 2006. Customs officials searched her luggage after an x-ray scan raised their suspicions; they discovered four heavily wrapped packages which, according to a field test and a drug-sniffing dog, contained narcotics. Later testing confirmed the presence of approximately 3.5 kilograms of heroin. … On appeal, Ayala first contests the sufficiency of the evidence to support her convictions. … Affirmed. U.S. v. Ayala-Tapia.

1. Of the Southern District of New York, sitting by designation. [↩]

05-6967 U.S. v. Sero
Before: WALKER, B.D. PARKER, Circuit Judges, and CASTEL, District Judge.¹
PER CURIAM: Fernando Sero appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Brient, J.). Sero was convicted of exporting weapons and other defense articles from the United States to the Philippines in violation of the Arms Export Control Act (“AECA”), 22 U.S.C. § 2778, and the International Traffic in Arms Regulations (“ITAR”), 22 C.F.R. Part 120, et seq. Sero pled guilty to one count of a four count indictment charging him with unlawfully shipping the following gun parts and amunition: three take-down pins, one trigger housing unit, one bolt group, one sighting group, one magazine release, three receivers, one stock, one buffer spring, ten 7.62 mm magazines, two boxes of .40 caliber Black Talon DP cartridges, and three boxes of weapons primers. He was sentenced principally to 40 months imprisonment – – six months below the bottom of the guideline range – – followed by a three-year term of supervised release. This appeal, which challenges the length of his sentence, followed. … we affirm. U.S. v. Sero.

1. The Honorable P. Kevin Castel, United States District Court for the Southern District of New York, sitting by designation. [↩]

06-1699 U.S. v. LaFortune
Before Lipez, Circuit Judge, Cyr, Senior Circuit Judge, and Howard, Circuit Judge.
LIPEZ, Circuit Judge. Following convictions on four child pornography charges, Girard LaFortune appeals from the denial of a motion to suppress challenging the probable cause determination of a magistrate judge who issued a search warrant for LaFortune’s residence. In making that determination, the magistrate judge reviewed an application for a search warrant that included an affidavit from an investigating officer and copies of pornographic images. LaFortune claims that the affidavit and the accompanying images did not permit the magistrate judge to determine whether the images depicted real children rather than virtual children. Instead, LaFortune argues, the magistrate judge required the assistance of “informed lay opinion, evidencing some kind of basic technical familiarity with virtual imaging and giving specific reasons why the proffered depictions could readily be ruled out as artificial creations.” Without such assistance, LaFortune argues, the magistrate judge could not make the necessary probable cause determination. The district court rejected this argument.
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LaFortune also appeals the enhancement of his sentence pursuant to 18 U.S.C. § 2251(e), arguing that the enhancement violates his Sixth Amendment rights because a jury did not determine the fact of his prior convictions. We affirm the convictions and the sentence. … U.S. v. LaFortune.

06-20321, 06-20593, 06-20691, U.S. v. Yeager
Before HIGGINBOTHAM, GARZA, and BENAVIDES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge: This is a consolidated interlocutory appeal of an order denying a motion to dismiss a government indictment under the doctrine of collateral estoppel.¹ In 2005, Defendants F. Scott Yeager, Joseph Hirko, and Rex Shelby (“Defendants”) were tried on various counts for their actions while employed at Enron Broadband Services (“EBS”). The jury acquitted Defendants on some of these counts but hung on others, after which the United States (“Government”) again indicted Defendants on some of the mistried counts. Contending that the acquitted counts collaterally estopped the Government from pursuing the mistried counts, Defendants moved to dismiss the indictment. The district court denied the motion. For the reasons below, we AFFIRM. … U.S. v. Yeager.

1. We have jurisdiction over this case under 28 U.S.C. § 1291. Abney v. United States, 431 U.S. 651, 659 (1977) (“Although it is true that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds lacks the finality traditionally considered indispensable to appellate review, we conclude that such orders fall within the small class of cases that Cohen [sic] placed beyond the confines of the final-judgment rule.”) (internal quotation marks omitted). [↩]

06-2329 U.S. v. Sanchez
Before MURPHY, EBEL and O’BRIEN, Circuit Judges.
O’BRIEN, Circuit Judge. The district court refused to suppress evidence against Marcos Sanchez. He contends police officers did not have reasonable suspicion of criminal activity so as to justify an investigatory stop of the vehicle in which he was riding. Further, he contends even if the stop was justified at its inception, the officers exceeded the scope of the stop by frisking him for weapons. We examine the use of statements and verbal acts of unidentified, but identifiable tipsters in contributing to the officers’ suspicion of criminal activity. We also consider the circumstances which might justify a pat-down search incident to an investigatory stop. We affirm. … U.S. v. Sanchez.

07-1311 U.S. v. Nacchio
Before KELLY, McCONNELL, and HOLMES, Circuit Judges.
McCONNELL, Circuit Judge. A Denver jury convicted Joseph Nacchio, the former CEO of Qwest Communications International, Inc., of nineteen counts of insider trading. Mr. Nacchio appeals, arguing that the evidence was insufficient to convict him, that the jury was improperly instructed, and that the trial judge incorrectly excluded evidence—expert testimony and classified information—important to his defense. We agree that the improper exclusion of his expert witness merits a new trial, but we conclude that the evidence before the district court was sufficient for the government to try him again without violating the Double Jeopardy Clause. … The judgment of the district court is REVERSED and the case is REMANDED for a new trial before a different district judge.
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HOLMES, Circuit Judge, dissenting in part and concurring in part. The majority elevates form over substance in concluding that Rule 16 was the foundation for the district court’s exclusion of Professor Fischel’s expert testimony. Daubert was at the heart of the district court’s decision, and Mr. Nacchio was on clear notice of this fact. The court did not abuse its discretion in finding that Mr. Nacchio did not carry his burden under Daubert of establishing the admissibility of Professor Fischel’s testimony. Accordingly, I respectfully dissent from Section II(A) of the majority’s opinion. I concur with the majority’s conclusion that Mr. Nacchio failed to establish grounds for reversal in the district court’s exclusion of classified information and in its instructions to the jury. I also believe the evidence was legally sufficient to support the jury’s verdict. Therefore, I would affirm the district court and uphold Mr. Nacchio’s conviction. … U.S. v. Nacchio.

06-30258 U.S. v. Holland
Before: David R. Thompson, Andrew J. Kleinfeld, and Jay S. Bybee, Circuit Judges.
Order: The Opinion filed September 4, 2007, slip op. 11411, and appearing at 501 F.3d 1120 (9th Cir. 2007), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.
BYBEE, Circuit Judge: Russell Laroy Holland appeals his conviction and sentence for mailing threatening communications and threatening the President of the United States. He maintains that the district court judge who imposed the sentence should have recused himself after Holland obtained the judge’s home telephone number and left at least one threatening message prior to his sentencing. We hold that the district judge reasonably construed Holland’s threatening phone message as an attempt to manipulate the court system which did not warrant his sua sponte recusal. Accordingly, we affirm the judgment. … U.S. v. Holland.

07-1874 U.S. v. Hoffman
Before EASTERBROOK, Chief Judge, and FLAUM and WOOD, Circuit Judges.
FLAUM, Circuit Judge. The work of two first-time informants eventually led to Justin Hoffman’s arrest and subsequent search of his home. As the informants had indicated, Hoffman dealt drugs, and a jury ultimately found him guilty of various drug and gun-related offenses. Before his trial began, Hoffman attempted to suppress the incriminating evidence found in his home on the grounds that the affidavit supporting the search warrant contained false statements that were made with a reckless disregard for the truth. The district court denied his motion, and we affirm….U.S. v. Hoffman.

07-2163, 07-2393 U.S. v. Salgado
Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.
EASTERBROOK, Chief Judge. Remberto Juarez offered to buy ten kilograms of cocaine from David Elias, who introduced Daniel Pacheco-Gonzales to Juarez as his supplier. But when Pacheco-Gonzales could not come up with the cocaine, he and Elias decided to rob Juarez instead. They told Juarez that the cocaine was in hand; a meeting was arranged; Elias and Pacheco-Gonzales hired some aides (including Laura Salgado, who was to drive the getaway car). Elias, Pacheco-Gonzales, and Salgado, plus some henchmen, arrived at the site of the transaction and tried to rob Juarez’s lieutenant of the purchase money. They learned, to their horror, that both sides of this transaction were faking. Juarez was working for the Drug Enforcement Agency; his lieutenant was an informant; the site of the transaction was teeming with concealed agents. Soon Elias, Pacheco-Gonzales, and Salgado were in custody. … U.S. v. Salgado.

07-1208 U.S. v. Hayes
U.S. District Court for the Eastern District of Missouri – St. Louis
[PUBLISHED] [Shepherd, Author, with Beam and Melloy, Circuit Judges]
Criminal case – Criminal law and Sentencing. Evidence was sufficient
to show defendant concealed a wanted person after she learned of his
federal arrest warrant; instruction properly informed jury of the
elements of the offense; sentence was not unreasonable.

02-1386, 02-1461, 02-1570 U.S. v. Gabrion
Before: MERRITT, BATCHELDER, and MOORE, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. In this appeal from a federal criminal conviction, we are confronted with the precursory issue of whether a district court has subject matter jurisdiction over a criminal prosecution for murder — the federal statute for which predicates subject matter jurisdiction on the murder’s having been committed on certain federal property — when the property in question is within the national forest. The dispositive question is whether certain national forest land falls within the federal government’s territorial jurisdiction. Because, in this case, it does, the district court had subject matter jurisdiction over this criminal prosecution. …
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KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I concur in the judgment of the lead opinion and write separately because my analysis differs in some respects and because I believe we are obligated to respond to additional arguments made by Gabrion that the lead opinion does not address. …
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MERRITT, Circuit Judge, dissenting. Although it may seem at first glance somewhat counterintuitive to say that the federal courts do not have general or plenary subject matter jurisdiction over murder and other crimes in the national forests, that is, in fact, the situation. That is the situation because our system of federalism requires that Congress act by clear positive legislation to create such criminal jurisdiction, and Congress has not done so. There is no commonlaw, federal criminal, subject-matter jurisdiction in national forests or elsewhere, and this concept has been a part of our system of checks and balances limiting the power of the federal government from the beginning. … U.S. v. Gabrion.

05-10692 U.S. v. Lewis
Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins, and Kim McLane Wardlaw, Circuit Judges.
WARDLAW, Circuit Judge: Beau Lee Lewis appeals the district court’s decision to dismiss without prejudice his indictment for violation of the Speedy Trial Act (“STA”), 18 U.S.C. § 3162(a)(2). On Lewis’s prior appeal, we found that one discrete period of pretrial delay had violated the STA, did not reach the other asserted STA violations, and remanded for a determination of whether the dismissal of the indictment should be with or without prejudice. United States v. Lewis, 349 F.3d 1116, 1121 (9th Cir. 2003) (“Lewis I”). Lewis correctly contends that the district court misconstrued the scope of our mandate by considering only the one period of delay we found to violate the STA before dismissing the indictment without prejudice. … Dissent by Judge O’Scannlain … U.S. v. Lewis.

07-2026, 07-2028 U.S. v. Heppner
U.S. District Court for the District of Minnesota – St. Paul
[PUBLISHED] [Murphy, Author, with Loken, Chief Judge and Jarvey, District Judge]
Criminal case – Criminal law. In prosecution for mail fraud, the
instruction on materiality was a proper statement of the law and the
evidence was sufficient to convict defendants; Brady claims rejected; no
error in admitting into evidence a portion of defendant Heppner’s
testimony before the Commodity Futures Trading Commission.

07-1719 U.S. v. Walker
District of Nebraska – Lincoln
[PUBLISHED][Loken, Author, with Wollman and Shepherd, Circuit Judges]
Criminal case – criminal law. District court did not err in concluding
that initial Miranda violation did not require suppression of statements
made the next day after defendant was properly advised of and waived his
Miranda rights.

07-1158 U.S. v. Refert
U.S. District Court for the District of South Dakota
[PUBLISHED] [Smith, Author, with Riley and Bowman, Circuit Judges]
Criminal case – Criminal law and sentencing. Instructions properly
advised the jury of the essential elements of the offenses of health care
fraud and making a false claim against the United States; evidence was
sufficient to support conviction for making false claims; district court did
not err in including emergency room costs in defendant’s restitution
order; district court plainly erred in sentencing defendant to consecutive
terms of supervised release, and that portion of the sentence is reversed
and remanded for resentencing.