Parole / Probation

1. Bearden v. Georgia, 461 US 660, 76 L.Ed.2d 221, 103 SCt 2064 (1983)
   An individuals probation cannot be revoked for non – payment of a fine.
   
   
2. Board Of Pardons v. Allen, 482 US 369, 96 L.Ed.2d 303, 107 S.Ct. 2415 (1987)
   Montana statute, providing that parole board shall release prisoner on parole when certain prerequisites are met, held to create liberty interest protected under Fourteenth Amendment.
   
   
3. Caporale v. Gasele, 940 F.2d 305 (8th Cir. 1991)
   Defendant's claim that Parole Commission "double counted" by using same factors to depart from guidelines as it used to establish offense severity level was reviewable: double counting violates Parole Act.
   
   
4. Ceniceros v. US Parole Commission, 837 F.2d 1358 (5th Cir. 1988)
   Parole Commission is bound by its own regulations unless it can show good cause for deviating from them.
   
   
5. Cook v. Tx D.O.C. Justice Planning Dept., 37 F.3d 166 (5th Cir. 1994)
   

   1. Section 1983 action is appropriate remedy for recovering damages resulting from illegal administrative procedures.
   2. Section 1983 is appropriate legal vehicle to attack unconstitutional parole procedures.
   3. Prior convictions held void by Court of Appeals in prior decision should not be considered by parole board in determining parole eligibility of prisoner.

   
   
6. DeWitt v. Ventetoulo, 6 F.3d 32 (1st Cir. 1993)
   State is not obliged by Constitution to parole its prisoners, but having done so, it is obliged to afford them due process when it revokes parole.
   
   
7. Fernandez v. US, 941 F.2d 1488 (11th Cir. 1991)
   Actions of parole commission may be challenged only in habeas corpus proceedings initiated pursuant to §2241 in district in which individual is incarcerated.
   
   
8. Green v. ARN, 839 F.2d 300 (6th Cir. 1988)
   Petitioners release from parole did not moot her habeas corpus action, considering the collateral consequences which might flow from her criminal conviction.
   
   
9. Maynard v. Havenstrite, 727 F.2d 439 (5th Cir. 1984)
   Evans v. Dillahunty, 711 F.2d 828 (8th Cir. 1983)
   Probation officers are absolutely immune for erroneous PSI reports. The Commissioner is cloaked with the same immunity.
   
   
10. Minnesota v. Murphy, 465 US 420, 79 L.Ed.2d 409, 104 S.Ct. 1136 (1984)
    A probationer confronted with incriminating questions at a meeting with his probation officer ordinarily will have no problem effectively claiming the privilege against self incrimination at the time disclosures are requested.
    
    
11. Moody v. Daggett, 429 US 78, 50 L.Ed.2d 236, 97 S.Ct. 274 (1976)
    A parolees liberty involves significant values protected by the due process clauses of the Fifth and Fourteenth Amendments.
    
    
12. Note: Supervised release is not mandatory in all instances. A judge may depart from the guidelines for of the rational preparing listed in Title 18 USC. 3553B and 3583. May" is used in the statutory language while the language of the guidelines, is “shall” is mandatory.
    
    
13. Morrissey v. Brewer, 408 US 471, 33 L.Ed.2d 484, 92 S.Ct. 2593 (1972)
    Gagnon v. Scarpelli, 411 US 778, 46 L.Ed.2d 656, 94 S.Ct. 1756 (1973)
    Perry v. US Parole Comm'n, 831 F.2d 811 (8th Cir. 1987)
    

    1. At a parole­revocation hearing a probationer is entitled to less than the full panoply of due process rights accorded a defendant at a criminal trial.
    2. The minimum requirement of due process includes, inter alia, written notice of the claimed violations of parole.

    
    
14. O'Bremski v. Maass, 915 F.2d 418 (9th Cir. 1990)
    State habeas corpus petitioner was entitled to have his release date considered by a parole board that was free from bias or prejudice.
    
    
15. Patten v. North Dakota Parole Board, 783 F.2d 140 (8th Cir. 1986)
    State statutes, rules, and regulations can create a constitutionally protected liberty interest in parole.
    
    
16. Powell v. Ducharme, 998 F.2d 710 (9th Cir. 1993)
    Once inmate serving life sentence serves discretionary minimum term set by Indeterminate Sentence Review Board, inmate must be considered for parole at expiration of that term.
    
    
17. A.R.S. 12-251
    State v. Pima Co. Adult Probation Dept., 147 Ariz. 146, 708 P.2d -1337 (1985)
    Probation officers are officers, agents and employees of the judicial department of the state.
    
    
18. State v. Wagstaff, 164 Ariz. 485, 794 P.2d 118
    Defendant was convicted in the Superior Court, Maricopa County, Daniel E. Nastro, J., No. CR-152707, of child molestation. Defendant appealed and filed petition for review of denial of postconviction motion. The Court of Appeals, 161 Ariz. 66, 775 P.2d 1130, affirmed conviction, modified sentence and granted petition for review. The Supreme Court, Gordon, C.J., held that: (1) statute providing for mandatory lifetime parole and conviction for dangerous crime against children did not provide penalty for violation of parole which violated separation of powers, and (2) discretionary sentence of lifetime parole for second-degree offenders without clear sanctions violated separation of powers. Judgment of Court of Appeal approved as modified; sentence imposing lifetime parole vacated.
    
    
19. Supt. Massachusetts Corr. Inst. v. Hill, 472 US 445, 86 L.Ed.2d 356. 105 S.Ct. 2768 (1985)
    Young v. Kann, 926 F.2d 1396 (3rd Cir. 1991)
    Prisoner has constitutionally protected liberty interest in good time credit.
    
    
20. Taylor v. US Parole Commission, 734 F.2d 1152 (6th Cir. 1984)
    The parole commission abused it's discretion in ruling that single piece of hearsay evidence established by preponderance of evidence that parolee had engaged in new criminal conduct.
    
    
21. US v. Barth, 899 F.2d 199 (2nd Cir. 1990)
    Probation officer should commit oral modifications to condition of probation to writing.
    
    
22. US v. Copeland, 20 F.3d 412 (11th Cir. 1994)
    Same protections granted those facing revocation of parole are required for those facing revocation of supervised release.
    
    
23. US v. Granderson, 511 US, 127 L.Ed.2d 611, 114 S.Ct. (1994)
    Duration of imprisonment following probation revocation for drug possession held to be governed by originally applicable Federal Sentencing Guidelines imprisonment range, rather than by term of probation.
    
    
24. US v. Lamberti, 847 F.2d 1531 (11th Cir. 1988)
    Statements made by parolee during interrogation to his parole officer without prior administration of Miranda warnings are admissible at trial.
    
    
25. US v. McCormick, 54 F.3d 214 (5th Cir. 1995)
    Court must expressly find that there is "good cause" to deny defendant right to confront and cross­examine adverse witness in parole revocation hearing.
    
    
26. US v. Smith, 953 F.2d 1060 (7th Cir. 1992)
    Constitutional power of the President to grant reprieves and pardons for offenses against the United States entails an unreviewable power to reduce a sentence imposed by a court.
    
    
27. US v. Stevens, 986 F.2d 283 (8th Cir. 1993)
    Decisions to revoke probation and imprison person who is attempting to make his victims whole should not be taken lightly.
    
    
28. US v. Stites, 56 F3d 1020 (9th Cir. 1995)
    Cooperation with probation officer is not required of defendant at peril of increased imprisonment.
    
    
29. US v. Tippens, 39 F.3d 88 (5th Cir. 1994)
    Persons on supervised release have procedural due process rights in context of revocation hearings.
    
    
30. White v. White, 925 F.2d 287 (9th Cir. 1991)
    Parolee has right to confront and cross­examine adverse witnesses at parole revocation hearing.

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Perjured Testimony

1. ARS 13-2702 Perjury: Classification; Purpose
   The function of the perjury statute is to protect the administration of government from the debilitating effects of false testimony. See also: Franzi v. Superior Court ex rel. County of Pima, 139 Ariz. 556, 679 P.2d 1043 (1984)
   
   
2. Blacks Law Dictionary: Crimen Falsi
   A term derived from common-law where perjured testimony is considered null and void.
   
   
3. Bonin v. Calderon, 59 F.3d 815, 844 (9th Cir 1995)
   If the prosecutor knowingly uses perjured testimony or knowingly fails to disclose a testimony is false, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury verdict.
   
   
4. Brown v. Wainwright, (1986 CALL FLA) 785 F.2d 1457
   Prosecution violated due process clause when it knowingly allowed material testimony to be introduced at trial, failed to step forward and make falsity known, and knowingly exploited false testimony in closing arguments.
   
   
5. State v. Lada Bouche, (1985) 146 VT 279, 502 A.2d 852
   Conviction obtained through states knowing use of false evidence, either solicited by state or allowed to go uncorrected, violates fourteenth amendment of US Constitution.

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Plain Error

1. F.R.Cr.P. Rule 52(b)
   Plain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
   
   
2. Note: The Supreme Court has characterized plain error as error, deviation from a legal rule is "error" unless the rule has been waived.
   
   
3. Johnson v. US, 520 US 461, 465 (1997)
   Failure to assert right usually results in forfeiture, but plain error rule mitigates. The plain error doctrine recognizes that where a defendant's substantial personal rights are at stake, the rule forfeiture should been slightly if necessary to prevent a grave injustice.
   
   
4. State v. Garcia-Contreras, 191 Ariz. 144, 953 P.2d 536
   Defendant was convicted by jury upon retrial in the Superior Court, Maricopa County, No. CR 91-02873, Stephen A. Gerst, J., of child molestation charges. Defendant appealed. Following remand, the Court of Appeals affirmed convictions. Granting petition for review, the Supreme Court, Zlaket, C.J., held that: (1) defendant's choice not to be present at jury selection, after trial court denied request for continuance to allow defendant's civilian clothing to arrive, was not voluntary and did not constitute waiver of right to be present; (2) denial of continuance was abuse of discretion; and (3) error in denying continuance was structural error that was not subject to harmless error review. Convictions reversed; case remanded for new trial.
   
   
5. US v. Battle, 289 F.3d 661, 664-65 (10th Cir. 2002)
   Plain error review because double jeopardy and other sentencing objections not raised by defendant before trial court.
   
   
6. US v. Clarke, 227 F.3d 874, 884 (7th Cir. 2000)
   Must look at records as a whole to determine whether prosecutors misconduct denied defendant the fair trial.
   
   
7. US v. Fuchs, 218 F.3d 957 (9th Cir. 2000)
   A trial court commits plain error when (1) there is error, (2) that is plain, and (3) the error affects substantial rights.
   
   
8. US v. Joyner, 191 F.3d 47, 55 (1st Cir. 1999)
   Plain error review of effect of prosecutors remarks on jury must be reviewed in light of the entire record.
   
   
9. US v. Leo-Maldonado, 302 F.3d 1061, 1064 (9th Cir. 2002)
   An appellate court may review for plain error if an objection is on specific. Review of untimely objection to sufficiency of indictment limited to plain error review.
   
   
10. US v. Mendoza-Paz, 286 F.3d 1104, 1113 (9th Cir. 2002)
    Plain error review because defendant failed to object to alleged improper lay opinion testimony at trial.
    
    
11. US v. Olano, 507 US 725, 732 (1993)
    Deviation from a legal rule is error unless the rule has been waived. Appellate courts plain error review is discretionary, and should be exercised only if it "seriously affects the fairness, integrity or public reputation of judicial proceedings".
    
    
12. US v. Rogers, 126 F.3d 655, 658 (5th Cir. 1997)
    Because impermissible in court identification allowed, error will receive increased scrutiny.
    
    
13. US v. Schwayder, 312 F.3d 1109, 1120 (9th Cir. 2002)
    When defendant fails to raise objection at trial, courts should take great care in exercising their discretion to reverse for plain error.
    
    
14. US v. Sesay, 313 F.3d 591, 596 (D.C. Cir. 2002)
    Plain error review because defendant failed to renew request to pursue line of questioning of witness that had been foreclosed by a pre-trial ruling.
    
    
15. US v. Spinner, 152 F.3d 950, 956 (D.C. Cir. 1998)
    Plain error because government failed to present any evidence on an essential element of crime.
    
    
16. US v. Syme, 276 F.3d 131, 154 (3rd Cir. 2002)
    Prejudice presumed in cases of constructive amendment to indictment.
    
    
17. US v. Tyler, 281 F.3d 84,100 (3rd Cir. 2002)
    Plain error review because defendant failed to raise confrontation clause challenge at trial.
    
    
18. US v. Velarde-Gomez, 224 F.3d 1062, 1069 (9th Cir. 2000)
    Although specific objections are required to preserve an issue on appeal, a facially vague objection can be sufficient to preserve a constitutional error.
    
    
19. US v. Wolfe, 245 F.3d 257, 261 (3rd Cir. 2001)
    A court's deviation from a legal rule constitutes error. A court's deviation from a legal rule constitutes error.

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Plea Agreement

1. Bonvillain v. Blackburn, 785 F.2d 545 (5tb Cir. 1986)
   Unkept plea bargain is basis for grant of habeas relief if petitioner can prove existence of allegedly broken plea.
   
   
2. Grabowski v. Jackson County Public Defenders Office, 47 F.3d 1386 (5th Cir. 1995)
   To be valid, guilty plea must be knowingly, intelligently and voluntarily entered; defendant must be shown to understand nature of charges and consequences of plea.
   
   
3. Margalli - Olvera v. I.N.S., 43 F.3d 345 (8th Cir. 1994)
   

   1. Plea agreements are contractual in nature and are interpreted according to general contract principles.
   2. When government promises in plea agreement to remain silent or to refrain from making recommendation, its failure to do so is a breach of plea agreement.

   
   
4. North Carolina v. Alford, 400 US 25, 27 L.Ed.2d 162, 91 S.Ct. 160 (1970)
   US v. Harlan, 35 F.3d 176 (5th Cir. 1994)
   Defendant entering "Alford Plea' pleads guilty, but affirmatively protests his factual innocence to charged offense.
   
   
5. Note: Fully ninety percent of the pleas entered into each year are "blind pleas" (non binding, open guilty pleas). However, it is possible avoid this death trap by having your attorney get together with the judge and the prosecutor and enter into a BINDING Sentencing Agreement. See Federal Rule of Criminal Procedure 119e (1) (C).
   
   
6. Note: Incarcerated individuals who are citizens of other countries can apply for a transfer to that country. Due to The onerous sentences given out in this country there is an excellent chance they will serve much less of their sentence in that country.
   
   
7. Pardue v. Burton, 26 F.3d 1093 (11th Cir. 1994)
   Claim that plea was not knowing and voluntary because defendant did not know of his full pleading alternatives may not be subject to harmless error analysis.
   
   
8. Santobello v. New York, 404 US 257, 30 L.Ed.2d 427, 92 S.Ct. 495 (1971)
   US v. Baldacchino, 762 F.2d 170 (1st Cir. 1985)
   The Supreme Court has recognized that plea bargain agreements must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.
   
   
9. Smith v. US, 876 F.2d 655 (8th Cir. 1989)
   US v. Wright, 43 F.3d 491 (10th Cir. 1994)
   In pleading guilty, defendant waives all challenges to prosecution except those related to jurisdiction.
   
   
10. Toro v. Fairman, 940 F.2d 1065 (7th Cir. 1991)
    Gonzalez v. US, 33 FM 1047 (9th Cir. 1994)
    Strickland standard for ineffective assistance of counsel claims extends to assistance with guilty pleas.
    
    
11. US v. Anderson, 970 F.2d 602 (9th Cir. 1992)
    If district court finds that government breached plea agreement, defendant will be entitled to appropriate relief, and district court may, in its discretion, grant defendant option of withdrawing his plea and re-pleading or proceeding to trial.
    
    
12. US v. Asset, 990 F.2d 208 (5th Cir. 1993)
    Government is not permitted to breach its part of plea agreement in such a way that frustrates defendant*s reasonable expectations under plea agreement.
    
    
13. US v. Clark, 55 F.3d 9 (1st Cir. 1995)
    

    1. Courts are guided in interpreting plea agreements by general principles of contract law.
    2. If specific performance is sufficient remedy for government's breach of plea agreement defendant must be resentenced by different judge.

    
    
14. US v. Corbitt, 996 F.2d 1132 (11th Cir. 1993)
    Judicial participation in plea negotiations is plain error, and defendant need not show actual prejudice.
    
    
15. US v. Cornelius, 999 F.2d 1293 (8th Cir. 1993)
    Before guilty plea is entered, defendant must explicitly waive privilege against self incrimination, right to jury trial and right to confront one's accusers.
    
    
16. US v. De La Fuente, 8 F.3d 1333 (9th Cir. 1993)
    

    1. Government's due process violation by breaching plea agreement that required motion for sentence below mandatory minimum because of defendant's substantial assistance could be remedied by sentence below statutory minimum; remedy was not withdrawal of plea.
    2. Breach of plea agreement implicates constitutional guarantee of due process.

    
    
17. US v. Field, 39 F.3d 15 (1st Cir. 1994)
    Guilty plea cannot be truly voluntary unless defendant possesses understanding of the law in relation to the facts.
    
    
18. US v. Gaev, 24 F.3d 473 (3rd Cir, 1994)
    Plea agreement of conspirators cannot be used as evidence of a defendant's guilt.
    
    
19. US v. Jones, (D.C. Cir. 1995)
    When prosecutor secures plea with promise, promise must be fulfilled.
    
    
20. US v. Laliberte, 25 F.3d 10 (1st Cir. 1994)
    Generally, the longer defendant waits before bringing motion to withdraw guilty plea, more forceful his or her reasons in support of withdrawal must be.
    
    
21. US v. Maddox, 48 F.3d 555 (D.C. Cir. 1995)
    

    1. Fact that it is left to district court’s discretion whether to accept or reject guilty plea does not allow court to reject plea on arbitrary basis.
    2. District court's exercise of discretion in deciding whether to accept or reject guilty plea is not unfettered.
    3. Trial judge must provide reasoned exercise of discretion in order to justify rejecting guilty plea which has been agreed to by prosecution and defense.

    
    
22. US v. Premachandra, 32 F.3d 346 (8th Cir. 1994)
    Incompetent defendant cannot make a valid guilty plea.
    
    
23. US v. Savage, 978 F.2d 1136 (9th Cir. 1992)
    Neither defendant nor government is bound by plea agreement until approved by the court.
    
    
24. US v. Skinner, 25 F.3d 1314 (6th Cir. 1994)
    In interpreting plea agreement government is to be held to literal terms of agreement and, ordinarily, must bear responsibility for any lack of clarity.
    
    
25. US v. Traynoff, 53 F.3d 168 (7th Cir. 1995)
    Government must fulfill agreements that reasonably cause criminal defendants to take damaging actions or to plead guilty.
    
    
26. US v. Vega, 11 F.3d 309 (2nd Cir. 1993)
    District court may permit withdrawal of guilty plea prior to sentencing upon showing by defendant of any fair and just reason.
    
    
27. US v. Velasco, 953 F.2d 1467 (7th Cir. 1992)
    Agreement between government and defendant are taken very seriously by the court and government must scrupulously perform and keep any agreement it makes.
    
    
28. US v. Velez, 1 F.3d 386 (6th Cir. 1993)
    Plea agreement entered into between government and defendant is not binding on district court upon sentencing.
    
    
29. US v. Walsh, 7 F.3d 1064 (1st Cir. 1993)
    Court may accept a guilty plea even when defendant denies guilt but thinks plea would be to his advantage.

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Presence of the Accused

1. F.R.Cr.P. Rule 43 (a)
   The defendants right to be present has been codified in rule 43 of the federal rule of criminal procedure, which provides: the defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence.
   
   
2. A.R.Cr.P. Rule 26.6 (d) (2)
   Paragraph (d) (2) precluded statements made by defendant during preparation of a pre-sentence report in one case from being admitted at trial in any later unrelated case.
   
   
3. Arnett v. Ricketts, et al., respondent, 665 F.Supp. 1437, 1987 US Dist. Lexis 7103
   After he was found guilty of first-degree murder, Arnett was interviewed by a probation officer, Gerald Snell, for the purpose of preparing a pre-sentence report. The probation officer did not inform Arnett of his constitutional right to remain silent and have the assistance of an attorney, or that his answers could be considered by the trial judge in deciding an appropriate sentence.
   
   
4. Cohen v. Senkowski, 290 F.3d 485, 489 (2nd Cir. 2002)
   Prescreening of prospective jurors is a material stage of trial at which the defendant has a constitutional right to be present.
   
   
5. Diaz v. US, 223 US 442, 445-55 (1912)
   Defendant in felony case has right to attend all stages of trial from impaneling of jury to delivery of verdict.
   
   
6. Estelle v. Smith, 451 US 454 (1981)
   The court may not, during the capital sentencing hearing, and when making the sentence determination, rely upon statements obtained through the custodial presentation interview without the aid of counsel.
   
   
7. Hoffman v. Arave, 236 F.3d 523, 540-41 (9th Cir. 2001)
   Although defendant was denied right to counsel during pre-sentence interview, a critical stage of proceeding, error is subject to harmless error review. The court concluded that under Estelle, the Fifth Amendment applied to inculpatory statements made during a pre-sentence interview with a probation officer. The state's reliance on US v. Benlian, 63 F.3d 824 (9th Cir. 1995) for the proposition that any pre-sentence interview in a capital case is not a critical stage is equally unavailing. In Benlian we reiterated our adherence to the Bauman v. US, 692 F.2d 565 (9th Cir. 1982) holding in a non capital case where the defendant waived the right to counsel. See: Benlian, 63 F.3d at 827.
   
   
8. Jones v. Cardwell, 686 F.2d 754,756 (9th Cir. 1982)
   The reasoning that underlies the decision in Estelle supports application of the Fifth Amendment privilege to the sentencing procedure in the instant case.
   
   
9. Powell v. Alabama, 287 US 45 (1932)
   It is central in the principle of Powell v. Alabama that in addition to counsels presence at trial, the accused is guaranteed that he need not stand alone against the state at any stage of the prosecution, formal or informal, in court or out, where counsels absence might irrigate from the accused's right to a fair trial.
   
   
10. Rice v. Wood, 44 F.3d 1396 (9th Cir. 1995)
    Criminal defendant charged with felony has right to be present at every stage of his trial.
    
    
11. State v. Gray, (1977, Minn.) 256 NW.2d 74
    Accused has constitutionally protected right, under fourteenth amendment to be present, after indictment, at every critical stage in criminal proceedings; before criminal proceeding can take place in absence of accused, it must be clear that the defendant himself is intentionally abandoning known right; unless accused has effectively waived right to be present, reversal of conviction is required unless and his absence was not prejudicial beyond reasonable doubt; defendants absence from pre-trial suppression hearing was violation of due process clause of the fourteenth amendment.
    
    
12. US v. Ash, 413 US 300 (1973)
    The court redefined in modified its (critical stage) analysis. According to the court, the (core purpose) of the guarantee of counsel is to assure assistance at trial (when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.) but assistance would be less than meaningful in the light of developments in criminal investigation and procedure if it is limited to formal trial itself; therefore counsel is compelled at pre-trial events that might appropriately be considered to be part of the trial itself.
    
    
13. US v. Herrerra-Figuerara, 918 F.2d 1430 (9th Cir. 1991)
    We exercised our supervisory power to require that probation officers permit defense attorneys to accompany defendants in all pre-sentence interviews.
    
    
14. US v. Novaton, 274 F.3d 968, 998 (11th Cir. 2001)
    Confrontation clause violated when critical stage of trial conducted while defendant involuntarily absent.

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Pre-Sentence Report

1. F.R.Cr.P Rule 18 USC. §3552(d)
   Requires that the PSI be disclosed to a defendant at least 10 days prior to the date set for sentencing.
   
   
2. Hoffman v. Arave, 236 F.3d 523, 540-41 (9th CIR 2001)
   Although defendant was denied right to counsel during pre-sentence interview, a critical stage of proceedings, error is subject to harmless review.
   
   
3. James Allan Arnett v. James R. Ricketts, 665 F.SUPP. 1437 (1987 US DIST) LEX157103
   After he was found guilty of 1st degree murder Arnett was interviewed by a probation officer, Gerald Snell. The probation officer did not inform him of his constitutional right to remain silent and to have an attorney present or that his answers could be considered by the trial judge in deciding an appropriate sentence.
   
   
4. Note: A defendant has an equal right to prepare and present a pre-sentence report to the judge in a criminal case. Defendant P.S.R.'s may be prepared by various and sundry legal aid groups throughout the country and usually have a very positive effect at a defendant's sentencing.
   
   
5. US Dept. Of Justice v. Julian, 486 US 1, 100 IL.Ed.2d 1, 108 S.Ct. 1606 (1988)
   P.S.I. reports are usually available to a criminal defendant under the Freedom of Information Act.
   
   
6. US v. Abanatha, 999 F.2d 1246 (8th Cir. 1993)
   Immunized information about defendants prior involvement in drug dealing should not have been included in defendants pre-sentence report.
   
   
7. US v. Arefi, 847 F.2d 1003 (2nd Cir. 1988)
   Even if a misstatement in a sentencing report is "harmless" and does not require re-sentencing. it must still be corrected or clarified.
   
   
8. US v. Blythe, 944 F.2d 356 (7th Cir. 1991)
   

   1. Sentencing Judge is not bound by pre-sentence reports recommendations concerning sentence.
   2. Defendant may waive right to receive pre-sentence report at least ten days prior to date set for sentencing by failing to assert his rights at the appropriate time.

   
   
9. US v. Herrera-Figuerara, 918 F.2d 1430 (9th CIR 1991)
   We exercise our supervisory power to require that probation officers permit defense attorneys to accompany defendants in all pre-sentence interviews.
   
   
10. US v. Huckaby, 43 F.3d 135 (5th Cir. 1995)
    There is a general presumption that courts will not grant third parties access to pre-sentence investigation reports.
    
    
11. US v. Kerley, 838 F.2d 932 (7th Cir. 1988)
    US v. Benson, 836 F.2d 1133 (8th Cir. 1988)
    

    1. Due process is violated when information on which defendant is sentenced is materially untrue or is misinformation.
    2. Government must prove facts in pre-sentencing report by preponderance of evidence.

    
    
12. US v. Manotas - Mejia, 824 F.2d 360 (5th Cir. 1987)
    Failure of district court to correct any factual inaccuracy in pre-sentence investigation report may be raised for first time on appeal and requires re-sentencing.
    
    
13. US v. Scam, 716 F.2d 463 (7th Cir. 1983)
    Trial court which relies on confidential pre-sentence report in sentencing a defendant should state in record whether it is relying on undisclosed information and should provide on the record a summary of information if it is so relying.
    
    
14. US v. Streeter, 907 F.2d 781 (8th Cir. 1990)
    Confrontation clause of Sixth Amendment applies at evidentiary hearing regarding disputed facts in pre-sentence report.

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Preservation of Rights for Review

1. Lawson v. Borg, 60 F.3d 608, 612-613 (9th Cir 1995)
   State court conclusion that in error was harmless is not a finding of fact entitled to the presumption of correctness.
   
   
2. Note: If a party fails to preserve in issue raised in a pre-trial motion in limine by contemperance objection at trial, an appellate court may nonetheless hear the issue under certain circumstances.
   
   
3. State v. McCann, 200 Ariz. 27, 21 P.3d 845 (2001)
   This state asks us to reconsider the holding , asserting that the US Supreme Court overturned the basis for our , State v. Ragan, 103 Ariz. 287, 440 P.2d 907(1965) and State v. Renaud, 108 Ariz. 417, 418, 499 P.2d 712, decision in Parke v. Raley, 506 US 20, 113 S. Ct. 517, 121 L.Ed.2d 391(1992). We agree and hold that ever bumble presumption of regularity attaches to prior convictions used to enhance a sentence or as an element of crime. After the courts Parke decision, many of our sister jurisdictions adopted the presumption of regularity for prior convictions used to enhance sentences or as balance of a crime. For instance in Massachusetts v. Lopez, 426 Mass. 657, 690 N.E.2d 809, 814(1998), the Massachusetts Supreme Court said : many other states have specifically relied on the Parke decision to reject collateral ** 848 challenges too long closed convictions by plea where sentencing enhancements involved. We conclude that a collateral challenge , like the defendants , to a prior conviction by guilty plea , if the challenge is to advance and all, it must be accomplished by sufficient credible and reliable evidence to rebut a presumption that the prior conviction was valid. If a defendant meets this burden , then an evidentiary hearing may be warranted at which the burden will be honored by the Commonwealth to show that the defendant’s plea proceedings were conducted anyway that protected his constitutional rights.
   
   
4. US v. Joost, 133 F.3d 125, 129 (1st Cir. 1998)
   Motion in Limine to have prior convictions excluded not sufficient to preserve issue for appeal in absence of further objection.
   
   
5. US v. McNeil, 184 F.3d 770, 7 76-77 (8th Cir. 1999)
   Motion in the limine to exclude evidence is not sufficient to preserve issue for appeal.
   
   
6. US v. Williams, 81 F.3d 1321, 1325 (4th Cir. 1996)
   Defendant's motion in limine sufficient to preserve objection when defendant clearly identified ruling sought and trial court ruled upon motion. vacated in part, 110 F.3d 62 (4th Cir. 1997)

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Prison Administration

1. Battle v. Anderson, 447 F.Supp 516 (S.D. New York 1977)
   Wolfish v. Levi, 439 F.Supp 114 (S.D. New York 1977)
   People are sent to prison AS punishment not FOR punishment.
   
   
2. Bennett v. Arkansas, 485 US 395. 99 L.Ed.2d 455, 108 S.Ct. 1104 (1988)
   Seizure of federal Social Security benefits to help defray cost of maintaining state prison system held to conflict with federal law.
   
   
3. Block v. Rutherford, 468 US 576, 82 L.Ed.2d 438, 104 S.Ct. 3227 (1984)
   Lack of contact visits does not violate an inmates constitutional rights.
   
   
4. Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986)
   Payne v. Block, 714 F.2d 1510 (11th Cir. 1984)
   An inmate has the right to expect prison officials to follow it's policies and regulations.
   
   
5. Cochrane v. Quattrocchi, 949 F.2d 11 (1st Cir. 1991)
   Prison visitor retains Fourth Amendment right to be free from unreasonable searches and seizures.
   
   
6. Dolphin v. Manson, 626 F.Supp. 229 (D. Conn. 1986)
   Robins v. Doe, 994 F.Supp. 214 (S.D. N.Y. 1998)
   Holding that the prolonged confinement of a pre-trial detainees in a facility statutorily designated for convicted persons raises the specter of a constitutional violation.
   
   
7. Falcon v. Us Bureau Of Prisons, 52 F.3d 137 (7th Cir. 1995)
   Prisoner who seeks quantum change in level of confinement must use writ of habeas corpus, while prisoner who seeks anything else must use civil rights action.
   
   
8. Giano v. Senkowski, 54 F.3d 1050 (2nd Cir. 1995)
   Prison walls are not a barrier separating inmates from protections of Constitution.
   
   
9. Gibbs v. King, 779 F.2d 1040 (5th Cir. 1986)
   Reeves v. Petticox, 19 F.3d 1060 (5th Cir. 1994)
   Inmate is entitled to prior notice or fair warning of proscribed conduct before severe sanctions may be imposed.
   
   
10. Green v. Bauvi, 46 F.3d 189 (2nd Cir. 1995)
    When inmate is segregated for extended period of time for purposes other than disciplinary proceedings, he is entitled to hearing.
    
    
11. Hall v. Lombardi, 996 F.2d 954 (8th Cir. 1993)
    When prison regulations contain language of mandatory nature (shall, will. must) they are interpreted as creating a protectable liberty interest.
    
    
12. Hazen v. Reagen, 16 F.3d 921 (8th Cir. 1994)
    It is impermissible to transfer inmate in retaliation for exercise of constitutional right.
    
    
13. Helling v. McKinney, 509 US 1125 L.Ed.2d 22, 113 S.Ct. (1993)
    Health risk allegedly posed by prison personnel's exposure of inmate to environmental tobacco smoke held to form proper basis of claim for relief under federal constitutions Eighth Amendment.
    
    
14. Holloway v. Hornsby, 23 F.3d 944 (5th Cir. 1994)
    Complaints about validity of incarceration or treatment accorded inmates are entitled to timely and meaningful consideration.
    
    
15. Howard v. State, 237 Ariz. p. 203, 204 (1925)
    When therefore, the superintendent of the prison receives the commitment which is only authorized for detaining any man within that prison, he may only do what that commitment orders him, to wit, receive and safely keep the defendant for the time specified therein. If, without legal justification, he does more than is necessary to so safely keep him, he is violating the inmates constitutional rights.
    
    
16. Howard v. Grinage, 6 F.3d 410 (6th Cir. 1993)
    Mackey v. Dyke, 29 F.3d 1086 (6th Cir. 1994)
    Prisoner had clearly established right to be released from segregation after he no longer qualified for confinement in administrative segregation.
    
    
17. Hudson v. Palmer, 468 US 517, 82I L.Ed.2d 393, 104 S.Ct. 3194 (1984)
    The Fourth Amendment has no applicability to the prison cell.
    
    
18. Johnson v. Hay, 931 F.2d 456, 461 (8th Cir. 1991)
    Hunter v. Bryant, 502 US 224, 228 (1991) (per curiam)
    Government official not required to guess, at peril, future development of constitutional doctrine, and cannot be held liable or violation of extremely abstract rights.
    
    
19. Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981), cert denied,453 US 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981)
    Confinement of pre-trial detainees with convicted persons is unconstitutional, maintaining jail security or unless physical facilities do not permit operation.
    
    
20. LeMaire v. Maass, 2 F.3d 851 (9th Cir. 1993)
    

    1. Ordinarily, lack of outside exercise for extended periods for inmates is sufficiently serious deprivation and thus meets requisite harm necessary to satisfy objective test for Eighth Amendment violation.
    2. Injunction requiring prison to install intercom and leave open door of quiet cells in disciplinary segregation unit (DSU) in order to allow inmates to summon guards for assistance could be applied to all inmates, even those with no serious health problems; previously health inmate may have a medical emergency or be injured in a fall or accident.

    
    
21. Long v. Norris, 929 F.2d 1111, 1115 (6th Cir. 1990)
    Public officials are presumed to be aware of the law governing their conduct. Public officials cannot rely on ignorance of even most esoteric aspects of law to avoid liability.
    
    
22. Lucero v. Gunter, 52 F.3d 874 (10th Cir. 1995)
    Although random urine testing of inmates does not violate Fourth Amendment, procedures for selecting inmates for testing must be truly random; procedures are not random if field officers have discretion to select targets with no limiting guidelines.
    
    
23. Meachum v. Fano, 427 US 215, 49 L.Ed.2d 451, 96 S.Ct. 2532 (1976)
    Beard v. Livesay, 798 F.2d 984 (5th Cir. 1986)
    Where substantive limitations have in fact been placed on discretion of prison officials in classifying inmate's security status, protectable liberty interest has been created.
    
    
24. McCabe v. Arave, 827 F.2d 634 (9th Cir. 1987)
    Prison regulation that restricted inmates to ten books or to ten books and ten magazines violated prisoners' First Amendment rights.
    
    
25. McGuckin v. Smith, 974 F.2d 1050
    State prisoner brought pro se civil rights action against several prison medical authorities and private orthopedic specialist doing consulting work for state Department of Corrections. The United States District Court for the District of Arizona, Alfredo C. Marquez, J., dismissed without prejudice claims against certain defendants and granted summary judgment in favor of other defendants. Prisoner appealed. The Court of Appeals, Reinhardt, Circuit Judge, held that: (1) dismissal without prejudice of certain defendants was appealable “final decision”; (2) District Court acted improperly by failing to notify prisoner of asserted deficiencies in complaint before dismissing his claims against one defendant or to permit prisoner to amend complaint to rectify omissions; (3) District Court should not have dismissed “misnamed” defendant who actually existed, especially as prisoner showed good cause for failing to serve that defendant within time prescribed by civil rule; and (4) prison doctor and specialist did not act with deliberate indifference to prisoner's serious medical needs. Affirmed in part, reversed in part, and remanded.
    
    
26. Meachum v. Fano, 427 US 215, 49 L.Ed.2d 451, 96 S.Ct. 2532 (1976)
    The court has the right to determine whether an inmate is being deprived of a "State Created Right" or "Liberty Interest" granted him by a rule, statute, or regulation promulgated by the government.
    
    
27. Miller v. Bensen, 51 F.3d 166 (8th Cir. 1995)
    Inmate had no right to prison employment under state law, and thus no constitutionally protected property interest in prison employment.
    
    
28. Montayne v. Haymes, 427 US 236, 49 L.Ed.2d 466, 96 S.Ct. 2543 (1976)
    Olim v. Wakinekona, 461 US 238, 75 L.Ed.2d 813, 103 S.Ct. 1741 (1983)
    Barfield v. Brierton, 883 F.2d 923 (11th Cir. 1989)
    Inmates usually possess no constitutional right to be housed at one prison instead of another.
    
    
29. Norman v. Taylor, 9 F.3d 1078 (4th Cir. 1993)
    Lack of serious injury is not fatal to Eighth Amendment excessive force claim under §1983 by prison inmate.
    
    
30. Moyo v. Gomez, 40 F.3d 982 (9th Cir. 1994)
    Prison inmates can be "employees" for purposes of Title VII in some circumstances.
    
    
31. Note: Federal prisoners who self surrender at their designated prisons, versus those taken into custody along the judicial process, automatically receive preferential consideration when applying for furloughs and custody level classifications. See B.O.P. Program Statement 5100 and Form BP 15.
    
    
32. Pell v. Procunier, 417 US 817, 41 L.Ed.2d 495, 94 S.Ct. 2800 (1974)
    Procunier v. Martinez, 416 US 396, 40 L.Ed.2d 224, 94 S.Ct. 1800 (1974)
    The general public has the right to associate with a prisoner.
    
    
33. Purvis v. Ponte, 929 F.2d 822 (1st Cir. 1991)
    Prison officials have duty under both the Eighth and Fourteenth Amendments to protect prisoners from violence at hands of other prisoners.
    
    
34. Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982)
    Although there are no Constitutionally mandated minimums for space requirements per inmate, 40 square feet per inmate would be minimum recommended.
    
    
35. Schroeder v. McDonald, 41 F.3d 1272 (9th Cir. 1994)
    Inmate has sufficient liberty interest in confinement at minimum security facility to trigger due process protection when he was transferred to medium security facility, prison regulations spoke in mandatory terms about how classification of prisoners would be conducted.
    
    
36. Slone v. Herman, (1993, CA Mo.) 983 F.2d 107, reh denied, (CA8) 1993 US App. LEXIS 1984
    Prison inmates liberty interest was violated in violation of two process when prison officials failed to release him after court order suspending inmates sentence had become final, regardless of whether officials agreed with order.
    
    
37. Stone v. City Of San Francisco, 968 F.2d 850 (9th Cir. 1992)
    In prison reform litigation courts must be careful to take into account interests of state and local authorities. However, principles of restraint dissolve when federal constitutional rights have been violated.
    
    
38. Sweet v. South Carolina Dept. Of Corrections, 519 F.2d 854 (4th 1975)
    Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980)
    Inmates must be furnished materials for personal hygiene and cell cleaning.
    
    
39. Turner v. Safley, 482 US 78. 96 L.Ed.2d 64, 107 S.Ct. 2254 (1987)
    Griffin v. Lombardi, 946 F.2d 604 (8th Cir. 1991)
    Prison officials must "put forward" legitimate governmental interest to justify regulation impinging on constitutional right to inmates and must provide evidence that interest proffered is reason why regulation is adopted or enforced.
    
    
40. Weaver v. Graham, 450 US 24, 101 S.Ct. 960
    State prisoner sought writ of habeas corpus challenging application to him of change in state law with respect to good time or gain time credits. The Supreme Court of Florida, 376 So.2d 855, denied the application and certiorari was granted. The Supreme Court, Justice Marshall, held that: (1) for a criminal or penal law to be ex post facto, it must be retrospective and it must disadvantage the offender affected by it; (2) the effect, not the form, of the law, determines whether to ex post facto; (3) fact that statute reducing good time credits was enacted in conjunction with other statutes providing additional bases for credits against sentence did not save it from an ex post facto challenge; and (4) as applied to a prisoner whose crime was committed before its effective date, the statute reducing the amount of good time credit violated the ex post facto clause. Reversed and remanded.
    
    
41. Wishon v. Gammon, 978 F.2d 446 (8th Cir. 1992)
    Prisoners have a right to nutritionally adequate food.
    
    
42. Young v. Quinlan, 960 F.2d 351 (3rd Cir. 1992)
    While prison administration may punish it may not do so in a manner that threatens physical and mental health of prisoners.
    
    
43. Wildon v. Seiter, 501 US 294, 111 S.Ct. 2321
    Prisoners brought action against prison officials alleging cruel and unusual punishment. The United States District Court for the Southern District of Ohio, James L. Graham, J., granted officials' motion for summary judgment and prisoners appealed. The Court of Appeals for the Sixth Circuit, 893 F.2d 861, affirmed. Certiorari was granted. The Supreme Court, Justice Scalia, held that prisoners claiming that conditions of confinement constituted cruel and unusual punishment were required to show deliberate indifference on part of prison officials. Vacated and remanded.

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Pro Se

1. Adkins v. DuPont De Nemours, 335 US 331, 93 I Ed2d 43, 69 S.Ct. 85 (1948)
   Sills v. Bureau Of Prisons, 761 F.2d 792 (D.C. Cir. 1985)
   "To guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action . . . in any court . . . solely because his poverty makes it impossible for him to pay or secure the costs," Congress enacted 28 USC. § 1915, which permits federal courts to authorize the maintenance of an action without prepayment of fees.
   
   
2. Anderson v. US, 948 F.2d 704 (11th Cir. 1991)
   Defendant who seeks post conviction relief has statutory right to proceed pro se.
   
   
3. Baker v. Cuomo, 58 F.3d 814 (2nd Cir. 1995)
   Curtis v. Bembenek, 48 F.3d 281 (7th Cir. 1995)
   In reviewing pro se complaint, Court of Appeals must employ standards less stringent than if complaint was drafted by counsel.
   
   
4. Burt v. Hennessey, 929 F.2d 457 (9th Cir. 1991)
   Pro se litigant was entitled to recover actual costs reasonably incurred in prosecuting a civil action (complicated but informative).
   
   
5. Carabal Sandoval v. Honsked, 35 F.3d 521 (11th Cir. 1994)
   Pro se party may sign documents such as objections and brief on behalf of spouse, unless to do so would result in manifest injustice.
   
   
6. Church v. Sullivan, 942 F.2d 1501 (10th Cir. 1991)
   US v. Treff, 924 F2D 975 (10th Cir. 1991)
   While defendant has the right to conduct his own defense, he has no right to some sort of hybrid representation where he acted as co-counsel.
   
   
7. Faile v. Upjohn, 988 F.2d 985, 988 (9th Cir. 1993)
   An uncorroborated pro se litigant completes service under F.R.C.P 5(b) upon submission to prison authorities for forwarding it to the party to be served.
   
   
8. Faretta v. State Of California, 422 US 806, 45 L.Ed.2d 562, 95 S.Ct. 2525 (1975)
   An individual has a constitutional right to represent himself.
   
   
9. Good v. Allain, 823 F.2d 64 (5th Cir. 1987)
   When dismissal of pro se complaint is warranted, it should generally be without prejudice to afford plaintiff opportunity to file an amended complaint.
   
   
10. Haines v. Kerner, 404 US 519, 30 L.Ed.2d 652, 92 S.Ct. 594 (1972)
    Boag v. MacDougall, 454 US 364, 70 L.Ed.2d 551, 102 S.Ct. 700 (1982)
    Simmons v. Abruzzo, 49 F.3d 83 (2nd Cir. 1995)
    Ferran v. Town Of Nassau, 11 F.3d 21 (2nd Cir. 1993)
    Pro se litigants pleadings are to be construed liberally and held to less stringent standard than formal pleadings drafted by lawyers; if court can reasonably read pleadings to state valid claim on which litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements.
    
    
11. Houston v. Lack, 487 US 266, 101 L.Ed.2d 245, 108 S.Ct. 2379 (1988)
    Caldwell v. Amend, 30 F.3d 1199 (9th Cir. 1994)
    Prisoner's pro se motion for judgement N.O.v. was deemed filed on date motion was placed in prison's "legal Mailbox," as opposed to date of its receipt by court clerk.
    
    
12. Johnson v. Avery, 393 US 483, 21 L.Ed.2d 718, 89 S.Ct. 747 (1969)
    Wolff v. McDonnell, 418 US 539, 41 L.Ed.2d 935, 94 S.Ct. 2963 (1974)
    Munz v. Nix, 908 F.2d 267 (8th Cir. 1990)
    Where there is no personal right to a jailhouse lawyer, a prison must allow prisoners to assist one another unless there is available to prisoners a reasonable alternative means of legal assistance.
    
    
13. Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987)
    Pro se litigant bringing civil rights suit in forma pauperis is entitled to five procedural protections:
    

    1. Process issued and served.
    2. Notice of any motion thereafter made by defendant or the court to dismiss the complaint and the grounds therefore.
    3. On opportunity to at least submit a written memorandum in opposition to such motion.
    4. In the event of dismissal, a statement of the grounds therefore.
    5. An opportunity to amend the complaint to overcome the deficiency unless it clearly appears from the complaint that the deficiency cannot be overcome by amendment.

    
    
14. Note: Your right to receive assistance from a jallhouse attorney is protected in law. If prison staff interfere with the activities of a jailhouse lawyer they are liable for monetary damages in their official and personal capacities via a 1983 Bivens Action, 403 US 388.
    
    
15. Note: You have the constitutional right to represent yourself in court and that if you have an attorney he is merely your agent and is bestowed only with the authority you voluntarily grant him. See the Sixth Amendment. Also see Title 28 USC. 1654 and Faretta v. California, 422 US 806. 1169.
    
    
16. Puett v. Blandford, 912 172d 270 (9th Cir. 1990)
    Party proceeding in forma pauperis (pro se) is entitled to have summons and complaint served by United States Marshal.
    
    
17. Shabazz v. Askins, 14 F.3d 533 (10th Cir. 1994)
    Because prison inmate appealing from summary judgment against him in a civil rights suit was appearing pro se, Court of Appeals construed his pleadings liberally.
    
    
18. Talley v. Lane, 13 F.3d 1031 (7th Cir. 1994)
    To insure that pro se complaints are given fair and meaningful consideration, they are liberally construed however inartfully pleaded.
    
    
19. Taylor v. List, 880 F.2d 1040 (9th Cir. 1989)
    Sixth Amendment, right to self representation includes right of access to law books, witnesses and other tools necessary to prepare defense.
    
    
20. US v. Halverson, 973 F.2d 1415 (8th Cir. 1992)
    Pro se filings are not considered when appellant is represented by counsel.
    
    
21. Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989)
    Prisoner litigating pro se has the right to undertake legal investigation and documentation of his claims in the manner that an attorney would, subject to the security and disciplinary requirements of a prison.

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Prosecutorial Misconduct

1. Ariz. Constitution Article 6 § 27
   Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law. No case shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done.
   
   
2. Bell v. Evatt, 72 F.2d 421 (4th Cir. 1995)
   Prosecutors closing argument of prejudicial facts not in evidence, personal knowledge of facts not in evidence, or in inflammatory comments about defendant are grounds for reversing convictions.
   
   
3. Berger v. US, 295 US 78, 88 (1935)
   The prosecutors duty in a criminal prosecution is to seek justice. As such, the prosecutor should prosecute with earnestness and vigor, but may not use improper methods calculated to produce a wrongful conviction. If the use of such methods impact the fairness of trial to make the resulting conviction and a denial of due process, it may justify a mistrial or reversal of conviction.
   
   
4. Blacklege v. Perry, 417 US 21, 28-29 (1974)
   Subsequent prosecution for more serious charge after defendant successfully appeals conviction violated due process.
   
   
5. Bragan v. Poindexter, 249 F.3d 476, 481 (6th Cir. 2001)
   Prosecutorial discretion is not unfettered and government acts are unconstitutional if intended to penalize defendant for exercise of constitutional right, or carried out in bad faith. Such conduct usually involves either selective prosecution, which denies equal protection of the law, or vindictive prosecution, which violates due process.
   
   
6. Bruno v. Rushen, 721 F.2d 1193 (9th Cir. 1983)
   Prosecutors comments, attacking defendants exercise of his constitutional right to counsel and integrity of defense counsel were improper, and since remarks were made at important stage of trial, were extensive and were not accidental, but calculated to wrongfully impute guilt to defendant, error was not harmless.
   
   
7. Donnelley v. De Christo Foro, 416 US 637,643 (1974)
   Darden v. Wainwright, 477 US 168, 181 (1986)
   US v. Young, 470 US 1, 11-12 (1985)
   A criminal conviction is not to be lightly overturned on basis of prosecutors comments alone; statements must be viewed in context of entire proceedings in order to determine whether conduct affected fairness of trial appellate review of prosecutorial misconduct therefore consists of a two-part test: first, was the prosecutors conduct actually improper; second, did the misconduct taken in the context of the trial as a whole, violate the defendant's due process rights.
   
   
8. Faile v. Upjohn, 988 F.2d 985, 988 (9th Cir. 1993)
   An uncorroborated pro se litigant completes service under F.R.C.P 5(b) upon submission to prison authorities for forwarding it to the party to be served.
   
   
9. Floyd v. Meachum, (1990, CA2 Conn) 907 F.2d 347
   Cumulative effect of three categories of improper remarks of prosecutor during his summation in-state trial including both inflammatory comments and erroneous statements of law resulting in violation of defendants due process right since case involved not one of the few isolated episodes but represented an escalating prosecutorial misconduct from initial to closing summation.
   
   
10. G. L. J.
    A presumption of vindictive prosecution arises only with a defendant is affirmatively exercising constitutional rights.
    
    
11. James v. Kentucky, 466 US 341, 80 L.Ed.2d 346, 104 S.Ct. 1830 (1984)
    The judge refused to give requested instructions, the Supreme Court reversed and held that state statutes did not take precedent over constitutional law.
    
    
12. Jenkins v. Artuz, 294 F.3d 284, 294 (2nd Cir. 2002)
    Prosecutors failure to correct government witnesses false testimony and subsequent attempt to bolster witnesses credibility violated defendants due process rights.
    
    
13. Kincaid v. Sparkman, 175 F.3d 444-46 (6th Cir. 1999)
    Due process violated because prosecution made repeated reference to petitioners prior charges.
    
    
14. Mastracchio v. Vose, 274 F.3d 590,602 (1st Cir. 2001)
    Prosecutors failure to correct witnesses false statement was improper because prosecutor had knowledge of statements falsity; however, this error was not violation of due process.
    
    
15. Muni v. Holohan, 294 US 103, 112 (1935) (per curiam)
    Napue v. Illinois, 360 US 264, 269 (1959)
    The prosecutor may not knowingly present false testimony and has a duty to correct testimony that he or she knows to be false.
    
    
16. Note: Vindictive prosecution is when a prosecutor uses the charging process to violate due process by penalizing the exercise of constitutional or statutory right.
    
    
17. Note: In situations in which it is reasonably likely that a prosecutor has acted vindictively, and a row bobble presumption of vindictiveness may arise. Otherwise, the defendant must show actual vindictiveness in order to prevail.
    
    
18. Nulph v. Cook, 333 F.3d 1052 (9th Cir. 2003)
    The presumption of vindictiveness can be over, only if the state proffers "objective information from the record concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding."
    
    
19. Pollard v. Delo, 28 F.3d 887 (8th Cir. 1994)
    Direct comments by prosecutor on defendant's failure to testify violate Fifth Amendment's privilege against self incrimination.
    
    
20. Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261 (1984)
    Following trial court's denial of defendant's motion for dismissal of new indictment on grounds of double jeopardy and prosecutorial vindictiveness, defendant sought relief by special action. The Supreme Court, Feldman, J., accepted jurisdiction and held that: (1) prosecutor's improprieties in cross-examining defendant warranted, if not required, mistrial; (2) prosecutor would not have been entitled to engage in abusive, argumentative and harassing conduct even if defense had been guilty of serious misconduct; and (3) prosecutor's misconduct was so egregiously improper as to compel conclusion that prosecutor intentionally engaged in conduct which he knew to be improper, that he did so with indifference, if not a specific intent, to prejudice defendant for purpose of avoiding significant danger of acquittal which had arisen, and to prejudice jury and obtain conviction no matter what the danger of mistrial or reversal, and thus, jeopardy attached and re-trial was barred.
    
    
21. State v. Bailey, 647 P.2d 170, 132 Ariz. 472 (1982)
    An attorney may not refer to evidence which is not in record or "testify" regarding matter not in evidence.
    
    
22. State v. Bowie, 580 P.2d 1190, 119 Ariz. 336 (1978)
    Opening statements should not contain any facts which prosecutor cannot prove a trial.
    
    
23. State v. Childs, 553 P.2d 1192, 113 Ariz. 318 (1976)
    In arguments to jury, attorneys are allowed wide latitude in discussing evidence and inferences they can legitimately be drawn therefrom; however, arguments before jury as to evidence which has been excluded by the court, withdrawn after objection, or as to matters which are simply not in evidence may constitute reversible error is sufficiently prejudicial.
    
    
24. State v. Denny, 579 P.2d 1101,119 Ariz. 131 (1978)
    Conviction will be overturned for prosecutorial misconduct when prosecutors behavior has caused accused to have an unfair trial.
    
    
25. State v. Dutton, 478 P.2d 87, 106 Ariz. 463 (1970)
    Attorneys have wide latitude in their remarks to jury, provided they are supported by evidence.
    
    
26. State v. Freader, 696 P.2d 1373, 144, 224 (Ariz. App. 1985)
    Prosecutor must be held to higher standard of conduct than an ordinary attorney, and has obligation to ensure that justice is done.
    
    
27. State v. Freeman, 559 P.2d 152, 114 Ariz. 32 (1976)
    Wide latitude is permitted in prosecution of closing argument to jury, because closing arguments are not evidentiary in nature and those counsel are allowed to comment on the evidence which has been introduced and to argue reasonable inferences therefrom.
    
    
28. State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626,628 (1991)
    Fundamental error is of such dimension that it cannot be said; it is possible for a defendant to have had a fair trial.
    
    
29. State v. Hardwick, 183 Ariz. 649, 905 P.2d 1384 (App. 1995)
    Court found reversible and fundamental error which deprives the defendant of a fair trial, when the prosecution repeatedly referred to the damaging contents of an unadmitted document, a document which would not have been admitted, because it was hearsay and improper expert opinion.
    
    
30. State v. Henry, 176 Ariz. 569, 863 F.2d 861 (1993)
    Prosecutor was held to have made improper remark in closing argument, asking whether the word "psychopath" came to mind while the defendant was testifying, Id. 176 Ariz. at 581, 863 P.2d at 873. It the court found that the remark was improper appeal to the passions and fears of the jury. See also State v. Comer, 165 Ariz. 413, 426, 799 P.2d 333, 346 (1990).
    
    
31. State v. Minnitt, 203 Ariz. 431
    During defendant's first two trials the prosecutor presented evidence from an officer that the prosecutor knew was false. The trial court found that the prosecutor had been involved in serious misconduct, but denied defendant's motion to dismiss, concluding that the mistrial resulted from the jury's inability to reach a verdict, rather than from the prosecutor's and the officer's misdeeds. The supreme court found that the prosecutor's misdeeds were not isolated events but became a consistent pattern of prosecutorial misconduct that began in 1993 and continued through retrial in 1997. The supreme court found that the defense counsel's knowledge of the falsehood did not nullify the prosecutor's behavior. Therefore, the supreme court concluded that the double jeopardy provision in Ariz. Const. art. 2, § 10, should have barred the third retrial because in both the 1993 and 1997 trials the prosecutor engaged in extreme misconduct that he knew was grossly improper and highly prejudicial, both as to defendant and to the integrity of the system. Even though defendant was convicted in the third trial which was free from falsehoods, the third trial was improper. The supreme court vacated defendant's convictions and sentences and instructed the trial court to dismiss the charges against defendant with prejudice.
    
    
32. State v. Noriega, 690 P.2d 775, 142 Ariz. 474 (1984)
    A prosecuting attorney is held to a higher standard of conduct than an ordinary attorney.
    
    
33. State v. Prentiss, 163 Ariz. 81, 786 P.2d 932 (1989)
    A prosecutor is held to a higher standard of conduct then an ordinary attorney, and then a prosecutor is duty bound to seek justice and not intentionally overlaid providing evidence which might damage his case or aid the eight years, is clear that refusal to allege mitigating circumstances, which the sentencing judge might consider, metals unduly with judicial power.
    
    
34. State v. Rainey, 672 P.2d 188, 137 Ariz. 523 (App. 1983)
    In closing arguments excessive and emotional language is the red and other weapons of counsel's forensic arsenal, limited by principle that attorneys are not permitted to introduce our comment upon evidence which has not previously been offered and placed before the jury.
    
    
35. State v. Schneider, 715 P.2d 297,148 Ariz. 441 (App. 1985)
    It is improper for prosecutor to thank court for favorable ruling on his objections.
    
    
36. State v. Sullivan, 635 P.2d 501, 130 Ariz. 213 (1981)
    Test for determining whether the prosecutors closing remarks are improper is a two-part test: the remarks must not only call to attention of jurors matters which they could not be justified in considering, but must appear to have probably influenced the jury's verdict.
    
    
37. State v. Zappia, 448 P.2d 119, 8 Ariz. App. 549, cert. denied, 90 S.Ct. 132, 396 US 861, 24 L.Ed.2d 113 (1968)
    Prosecutor may not ask questions which cast prejudicial or unfavorable insinuations without being prepared and able to prove facts implied by question.
    
    
38. Tart v. State, (1981, Okla Crim) 634 P.2d 750
    Prosecution is forbidden from giving his personal opinion of defendant skills and defendant may be denied his right to fair trial where prosecutors statement of opinion might unduly influence jury. This is especially true when prosecutor makes unconscionable misrepresentations of law in stating his opinion as to defendants guilt.
    
    
39. Turner v. Marshall, 63 F.3d 807, 818 (9th Cir. 1995)
    Reviewing both individual and cumulative impact of alleged instances of prosecutorial misconduct. Although prosecutorial discretion is broad, it is not unlimited, and courts have a responsibility to protect individuals from prosecutorial conduct that is based upon an unconstitutional motive.
    
    
40. US ex rel. Shaw v. De Robertis, (1985, CA7 Ill.) 755 F.2d 1279
    In order to constitute direct violation of 14th amendment, prosecutors improper comment must be misconduct so egregious that it deprives defendant of fair trial; whether prosecutor's comments made defendants trial so unfair as to deny due process requires determination as to whether comments changed results of trial; whether misconduct violates fourth amendment is mixed question of fact and wall and reviewing court is to reach de novo resolution of issue.
    
    
41. US v. Alexander, 287 F.3d 811, 818 (9th Cir. 2002)
    Upholding requirement that defendant proof selective prosecution or vindictive prosecution defense.
    
    
42. US v. Austin, 786 F.2d 986 (10th Cir. 1986)
    Courts and prosecutors generally are forbidden from mentioning that codefendant has either pied guilty or been convicted.
    
    
43. US v. Beckman, 298 F.3d 788, 793 (9th Cir. 2002)
    Prosecutors questions regarding defendants prior arrest in conviction was improper.
    
    
44. US v. Blakely, 14 F.3d 1557 (11th Cir. 1994)
    Prosecutor may not make suggestions, insinuations, and assertions calculated to mislead jury.
    
    
45. US v. Buege, 578 F.2d 187 (7th Cir.), cert. denied, 436 US 871, 99 S.Ct. 203, 58 L.Ed.2d 183 (1978)
    US v. Fearns, 501 F.2d 486 (7th Cir. 1974)
    Freeman v. Lane, 962 F.2d 1252 (1992)
    Which established that the prosecutors comments violated the Constitution. No reasonable strategic explanation has been given or exists for wide counsel would forego this issue on appeal.
    
    
46. US v. Childress, 58 F3d 693 (D.C. Cir. 1995)
    Prosecutor may not use bully pulpit of closing argument to inflame passions or prejudices of jury or to argue facts not in evidence.
    
    
47. US v. Coin, 753 F.2d 1510 (9th Cir. 1985)
    US v. Duncan, 850 F.2d 1104 (6th Cir. 1988)
    People Of Territory Of Guam v. Aqualo, 948 F.2d 1116 (9th Cir. 1991)
    Failure to give jury instruction on defense when some evidence supported it is reversible error.
    
    
48. US v. Eyster, 948 F.2d 1196 (11th Cir. 1991)
    Prosecutors improper vouching for credibility of prosecution witness tainted trial and required reversal of convictions.
    
    
49. US v. Frederick, 78 F.3d 1370
    Defendant challenged the judgment of conviction of the United States District Court for the District of Arizona for aggravated sexual assault against his minor stepdaughter. Defendant raised a number of issues on appeal, which included prosecutorial vouching, improper comments by the prosecutor about defendant's counsel, and prejudicial testimony by government witnesses that suggested defendant had committed similar offenses against others. Reversed and remanded.
    
    
50. US v. Garcia-Guizar, 160 F.3d 511, 520 (9th Cir. 1998)
    Prosecutor's description of defendant as "a liar" was improper because it constitutes personal opinion regarding defendant's credibility.
    
    
51. US v. Gray, 291 F.3d 30, 35 (D.C. Cir. 2002)
    Concerns over vindictiveness centers on whether prosecutor's actions are designed to punish defendant for asserting legal right.
    
    
52. US v. Grissom, 44 F.3d 1507 (10th Cir. 1995)
    Defendant is entitled to good faith or theory of defense instruction if it is supported by sufficient evidence for jury to find in defendant's favor.
    
    
53. US v. Hands, 184 F.3d 1322, 1328-29 (11th Cir. 1999)
    Prosecutors misstatement of evidence were reversible error because evidence of defendants guilt was not overwhelming.
    
    
54. US v. Hermanek, 289 F.3d 1076, 1099 (9th Cir. 2002)
    Prosecutors who portray themselves as participants in criminal investigation by using term "we" and "us" to refer to steps taken in investigation impermissibly vouched for the credibility of government's witness.
    
    
55. US v. Hernandez-Herera, 273 F.3d 1213, 1217 (9th Cir. 2001)
    Prosecutor violates due process by taking retaliatory action for defendants exercise of protected right.
    
    
56. US v. Hook, (1986, CA10 Okla) 780 F.2d 1526,cert. denied, (US) 90 L.Ed.2d 199, 106 S.Ct. 1657
    Due process prohibits prosecutors closing argument from expressing his personal opinion regarding evidence presented or guilt accused.
    
    
57. US v. Jones, 592 F.2d 1038, cert. denied, 99 S.Ct. 2179, 441 US 951, 60 L.ED.2d 1056 C.A. Ariz. 979
    Governments inability to produce evidence which it promised the jury in opening statement would appear to harm the government's case rather than the defense.
    
    
58. US v. Lanoue, 137 F.3d 656, 664 (1st Cir 2000)
    Successful assertions of vindictive prosecution are most common where a defendant advances some procedural or constitutional right in his then punished for doing so.
    
    
59. US v. Martinez, 974 F.2d 589 (5th Cir. 1992)
    

    1. Sixth Amendment secures for a criminal defendant right to present closing argument.
    2. Failure to allow closing argument constitutes plain error in absence of a waiver.

    
    
60. US v. McPhee, (1984, CA5 Tex) 731 F.2d 1150
    Defendants due process rights or violated by prosecutors closing statements blatantly implying existence of serious extrinsic offenses and statements that "we want you to find him guilty because a bunch of other reasons" or court gave no cautionary instruction to jury and evidence was not overwhelming.
    
    
61. US v. Nickens, 955 F.2d 112 (1st Cir. 1992)
    US v. Iglesias, 915 F.2d 1524 (11th Cir. 1990)
    It is improper for prosecutor to inject personal beliefs about the evidence into closing argument or to call the defendant a liar.
    
    
62. US v. Nionaguian, 741 F.2d 1434 (D.C. Cir. 1984)
    Prosecutor may not urge jurors to convict defendant in order to protect community values, preserve civil order, or deter future lawbreaking.
    
    
63. US v. Reed, 2 F.3d 1441 (7th Cir. 1993)
    It is not only permissible but advisable in closing argument to refute meritless accusations.
    
    
64. US v. Rosa, 17 F.3d 1531 (2nd Cir. 1994)
    It is improper for prosecutor to mischaracterize evidence or refer in summation to facts not in evidence.
    
    
65. US v. Rosales-Lopez, (1980 CA9 Cal) 617 F.2d 1349, affirmed, (1981) 451 US 182, 68 L.Ed.2d 22, 101 S.Ct. 1629
    Defendants right to due process of law is violated where prosecution increases severity of alleged charges in response to exercise of constitutional or statutory right, and vindictiveness is normally found where government has occasioned to re-indict or retry defendant following exercise of procedural right; however action of prosecutor in re-indict in defendant is not vindictive where charges contained in second indictment exposed defendant to no greater risk of punishment than did those contained in the first indictment.
    
    
66. US v. Salameh, 152 F.3d 88 (2nd Cir. 1998)
    Prosecutor must scrupulously refrain from injecting his credibility and overall knowledge into any part of the trial.
    
    
67. US v. Sardelli, 813 F.2d 654 (5th Cir. 1987)
    US v. LeQuire, 943 F.2d 1554 (11th Cir. 1991)
    Both direct and indirect comments on defendants failure to testify can invalidate a conviction. Prosecutors elicitation of testimony on five occasions about previous conviction of defendant was reversible error despite curative instructions.
    
    
68. US v. Smith, 982 F.2d 681,684 (1st Cir. 1993)
    Prosecutor statements that defendant was guilty, improper because a personal belief rather than simply the position of government.
    
    
69. US v. Smith, 982 F.2d 681 (1st Cir. 1993)
    US v. Easley, 994 F.2d 1241 (7th Cir. 1993)
    US v. Williams, 989 F.2d 1061 (9th Cir. 1993)
    Prosecutor should not inject his personal beliefs into his presentation of argument.
    
    
70. US v. Stokes, 124 F.3d 39, 45 (1st Cir. 1997)
    It is hornbook law that a federal court may dismiss an indictment if the accused produces evidence of actual prosecutorial vindictiveness sufficient to establish due process violation, or even if he demonstrates a likelihood of vindictiveness sufficient to justify a presumption.
    
    
71. US v. Suarez, 262 F.3d 468, 479 (6th Cir. 2001)
    Vindictive prosecution may arise from pre-trial increase in severity after defendant asserts protected right.
    
    
72. US v. Taren - Palma, 997 F.2d 525 (9th Cir. 1993)
    Opening argument, like closing, should not refer to matters that are not to be presented into evidence.
    
    
73. US v. Tocco, 135 F.3d 116, 130 (2nd Cir. 1998)
    Prosecutors improper reference to other evidence during examination of government's witness was not violation of due process because jury was promptly given curative instruction and there was ample evidence to support conviction.
    
    
74. US v. Tomblin, 42 F.3d 263 (5th Cir. 1994)
    Statements in closing argument that presuppose defendant's guilt can be the sort of foul blows long held improper.
    
    
75. US v. Vallie, 284 F.3d 917, 921-22 (8th Cir. 2002)
    Prosecutors question to defendant concerning prior unrelated offense was improper.
    
    
76. US v. Weinstein, 762 F.2d 1522, 1542 (11th Cir. 1985)
    Prosecution's misconduct must be sufficient to justify reversal, must be so pronounced and persistent that it permeates the entire atmosphere of the trial.
    
    
77. US v. Wilson, 262 F.3d 305,314 (4th Cir. 2001)
    Vindictive prosecution claim arises when prosecution violates due process by bringing more serious charges after defendant exercises right to appeal. Upholding requirement that defendant provide proof of vindictive prosecution defense.
    
    
78. US v. Yee - Chan, 17 F.3d 21 (2nd Cir. 1994)
    Incompetent summation can construe ineffective assistance of counsel.
    
    
79. Viereck v. US, (1943) 318 US 236, 87 L.Ed 734, 63 S.Ct. 561
    Federal prosecuting attorney, in his remarks to the jury may not indulge an appeal wholly irrelevant to any facts or issues in case, purpose and effect of which can only be to arouse passion and prejudice.
    
    
80. Washington v. Estelle, 648 F.2d 276, 279 (5th Cir.), cert. denied, 454 US 899, 102, S.Ct. 402, 70 L.Ed.2d 216
    Blankenship v. Estelle, 545 F.2d 510 (5th Cir. 1977), cert. denied, 444 US 856,100 S.Ct. 115, 62 L.Ed.2d 75 (1979)
    The admission of prejudicial evidence and improper argument justified federal habeas relief only if, in the context of the entire trial, the heirs contributed as "crucial, critical, highly significant factors."
    
    

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