Search & Seizure

1. Anderson v. Maryland, 427 US 463, 480 (1976)
   Maryland v. Garrison, 480 US 79, 84 (1987)
   Particular at the requirement prevents the seizure of one thing under a warrant describing another.
   
   
2. Arizona v. Hicks, 480 US 321, 328 (1987)
   The court held that to establish the incriminating character of an item, the police must show that after an inspection of “what is already exposed to plain view” they are able to determine that it is evidence or contraband.
   
   
3. Austin v. US, 509 US 125 L.Ed.2d 488, 113 S.Ct. (1993)
   Eighth Amendment excess fines clause held to apply to drug related forfeitures of property to United States under 21 USCS §§881(a)(4) and 881(a)(7).
   
   
4. Boyer v. County Of Washington, 971 F.2d 100 (8th Cir. 1992)
   Under Fourth Amendment warrant can be validly issued only by neutral and detached magistrate.
   
   
5. Brown v. Texas, 443 US 47, 61 L.Ed.2d 357, 99 S.Ct. 2637 (1979)
   Moya v. US, 761 F.2d 322 (7th Cir. 1985)
   People are entitled to refuse to provide information to police.
   
   
6. California v. Acevedo, US 114 L.Ed.2d 619, 111 S.Ct. 1982 (1991)
   US v. Mans, 999 F.2d 966 (6th Cir. 1993)
   When police have probable cause to believe that vehicle contains contraband, they may search entire vehicle and any containers located within it.
   
   
7. California v. Greenwood, 486 US 35. 100 L.Ed.2d 30, 108 S.Ct. 1625 (1988)
   Warrantless search and seizure of garbage bags left for collection on curb outside home upheld.
   
   
8. Florida v. Bostick, 501 US 115 L.Ed.2d 389, 111 S.Ct. 2382 (1991)
   US v. Todd, 963 F.2d 207 (8th Cir. 1992)
   US v. Childs, 944 F.2d 491 (9th Cir. 1991)
   As long as the police do not convey a message that compliance with their requests is required they can ask questions, request to search, and request ID (Authors note: you always have the right to shut up and walk away).
   
   
9. Florida v. Royer, 460 US 491, 75 L.Ed.2d 229, 103 S.Ct. 1319 (1983)
   Excellent case on airport profiles. The defendants consent to the opening of his luggage was tainted by his illegal detention.
   
   
10. Florida v. Wells, 495 US 1, 109 L.Ed.2d 1, 110 S.Ct. 1632 (1990)
    US v. Kelly, 913 F.2d 261 (6th Cir. 1990)
    Absent exigent circumstances or consent, officer is not to search locked suitcase without a search warrant.
    
    
11. Franks v. Delaware, 438 US 154, 57 L.Ed.2d 667, 98 S.Ct. 2674 (1978)
    US v. Wulferdinger, 782 F.2d 1473 (9th Cir. 1986)
    A "Franks" hearing is used to determine whether the search warrant was invalid because the affidavit provided to the magistrate issuing the warrant was misleading or incorrect.
    
    
12. Funaway v. New York, 445 US 573, 63 L.Ed.2d 639, 100 S.Ct. 1371 (1980)
    For an arrest to be valid under the Fourth Amendment probable cause must first exist.
    
    
13. Gasho v. US, 39 F.3d 1420 (9th Cir. 1994)
    Citizen retains right to refuse consent to warrantless search of bag containing personal effects, even if consent is given to search of vehicle in which bag is located.
    
    
14. Hayes v. Florida, 470 US 811, 84 L.Ed.2d 705, 105 S.Ct. 1643 (1985)
    Transporting suspect to police station for fingerprinting without probable cause warrant, or consent held violative of Fourth Amendment.
    
    
15. Jackson v. Gates, 975 F.2d 648 (9th Cir. 1992)
    Police officer was fired for refusing to give a urine sample, he sued on a number of grounds and won a $150,000 settlement.
    
    
16. Jackson v. Vannoy, 49 F.3d 175 (5th Cir. 1995)
    Passenger has standing to challenge constitutionality of vehicle stop given that stop results in seizure of passenger.
    
    
17. Katz v. US, 389 US 347, 357 (1967)
    Terry v. Ohio, 392 US 1, 20 (1968)
    Police must, whenever practicable, obtain advanced judicial approval of searches and seizures through the warrant procedure.
    
    
18. Katz v. US, 389 US 347, 357, 19 L.Ed.2d 576, 99 S.Ct. 507 (1967)
    Collidge v. New Hampshire, 403 US 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1968)
    US v. Robles, 45 F.3d I (1st Cir. 1995)
    Under plain view exception to search warrant requirement. incriminating nature of object must be readily apparent, officers must have had lawful access to object, and it must have been in plain view.
    
    
19. Lavicky v. Burnett, 75/8F.2d 468, 475 (10th Cir. 1985)
    Warrantless seizure in search of defendants tromp invalid because of vehicle in movable due to dismantle the engine and on private property.
    
    
20. McDonnell v. Hunter, 809 F.2d 1302 (8th Cir. 1987)
    Urinalysis is search and seizure within meaning of Fourth Amendment.
    
    
21. Michigan State Police v. Sitz, 496 US 444, 110 L.Ed.2d 412, 110 S.Ct. 2481 (1990)
    Stop of motorist at highway sobriety checkpoints held not to violate Fourth Amendment.
    
    
22. Miller v. US, 357 US 301. 2 L.Ed.2d 1332. 78 S.Ct. 1190 (1958)
    Wilson v. Arkansas, 514 US 131 L.Ed.2d 976, 115 S.Ct. (1995)
    US v. Finch, 998 F.2d 349 (6th Cir. 1993)
    

    1. Common law knock and announce principle held part of reasonableness inquiry under Federal Constitution's Fourth Amendment guarantee against unreasonable searches and seizures.
    2. Federal law requires that federal officers executing a search warrant must first knock and announce their authority and purpose before entering.
    3. Police may force a door open only if they have given express notice of both their authority and purpose; not just one or the other (see 18 USC §3109).
    4. Reasonable belief that firearms may have been within residence was alone insufficient to excuse violations of statutory knock and announce rule without exigent circumstances.

    
    
23. Minnesota v. Dickerson, 508 US 124 L.Ed.2d 334, 113 S.Ct. (1993)
    Seizure of a cocaine lump detected in person's pocket during pat down search held violative of Fourth Amendment where determination that lump was contraband was made only after further search.
    
    
24. Minnesota v. Olsen, 495 US 91, 109 L.Ed.2d 85, 110 S.Ct. 1684 (1990)
    The arrest of an overnight guest following a warrantless, non-consensual entry violated suspects rights under Fourth Amendment.
    
    
25. Nix v. Williams, 467 US 431, 81 L.Ed.2d 377, 104 S.Ct. 2501 (1984)
    Unlawfully obtained evidence held admissible if untimely or inevitably it would have been discovered by lawful means.
    
    
26. Oliver v. US, 466 US 170. 80 L.Ed.2d 214, 104 S.Ct. 1736 (1984)
    California v. Ciraolo, 476 US 207, 90 L.Ed.2d 210, 106 S.Ct. 1809 (1986)
    Warrantless aerial observation of individuals fenced in backyard held not to violate Fourth Amendment.
    
    
27. Peyton v. New York, 445 US 573, 63 LED2d 639, 100 S.Ct. 1371 (1980)
    US v. Parra, 2 Hid 1058 (10th Cir. 1993)
    

    1. Absent consent or exigent circumstances, police may not enter a citizen's home without a warrant.
    2. Mere presence of weapons or destructible evidence does not, by itself, create exigent circumstances.

    
    
28. Reid v. Georgia, 448 US 438, 65 L.Ed.2d 890, 100 S.Ct. 2752 (1980)
    Courts must be especially cautious when the evidence that is alleged to establish probable cause is entirely inconsistent with innocent behavior.
    
    
29. Schmerber v. California, 384 US 757, 16 L.Ed.2d 908, 86 S.Ct. 1826 (1966)
    Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994)
    Right to be free of strip searches and degrading body inspections is basic to concept of privacy, and thus, state's right to interfere with persons bodily integrity by means of strip searches is subject to constitutional limits.
    
    
30. Smith v. Ohio, 494 US 541, 108 L.Ed.2d 464. 110 S.Ct. 1288 (1990)
    US v. Most, 876 F.2d 191 (D.C. Cir. 1989)
    Warrantless search of grocery bag which provided probable cause for arrest, held not justified incident to arrest.
    
    
31. Spear v. Sowders, 33 F.3d 576 (6th Cir. 1994)
    Reasonable suspicion of prison officials must support scope of search of prison visitor as well as initiation of search.
    
    
32. Swoboda v. Dubach, 992 F.2d 186 (10th Cir. 1993)
    Excessive force during arrest violates a persons Fourth Amendment right against unreasonable searches and seizures.
    
    
33. Terry v. Ohio, 392 US 1, 20 I Ed2d 889, 88 S.Ct. 1868 (1968)
    US v. Strahan, 984 F.2d 155 (6th Cir. 1993)
    US v. Velarde, 25 F.3d 848 (9th Cir. 1994)
    

    1. TERRY allows only for an examination for concealed objects and prohibits searching for anything other than weapons (see Strahan).
    2. For an "Investigative Stop" to be valid there must be "reasonable articulable suspicion" (see Terry).
    3. To support TERRY stop in airport, police must identify specific facts which distinguish suspect from numerous innocent travelers who erratically dash through airports.

    
    
34. Thompson v. Louisiana, 469 US 17, 83 L.Ed.2d 246, 105 S.Ct. 409 (1984)
    Warrantless "murder scene" search of defendants home held unconstitutional.
    
    
35. US v. $124.570 In US Currency, 873 F.2d 1240 (9th Cir. 1989)
    Person had the above money seized while clearing thru an airport security check. The case was vacated on the grounds that the individual did not give his consent for a general search of his luggage.
    
    
36. US v. Almonte, 952 F.2d 20 (1st Cir. 1991)
    Unless exigent circumstances exist. warrantless searches are impermissible.
    
    
37. US v. ARCH, 7 F.3d 1300 (7th Cir. 1993)
    US v. Hardy, 52 F.3d 147 (7th Cir. 1995)
    Motel room occupied as temporary residence is entitled to same constitutional protection from warrantless searches as is person's home.
    
    
38. US v. Bonitz, 826 F.2d 954 (10th Cir. 1987)
    Absent some special exception. all containers and packages will receive the full protection of the Fourth Amendment during a police search.
    
    
39. US v. Brown, 52 F.3d 415 (2nd Cir. 1995)
    Federal "knock and announce" statute applied to search, even though state officials supervised execution of search warrant that was issued by state judge.
    
    
40. US v. Brown, 984 F.2d 1074 (10th Cir. 1993)
    Search warrants must describe both the place to be searched and things to be seized with particularity.
    
    
41. US v. Carey, 172 F.3d 1268, 1275-76 (10th CIR. 1989)
    Closed computer files containing child pornography deemed out of plain view.
    
    
42. US v. Cohen, 796 F.2d 20 (2nd Cir. 1986)
    Search of a pre-trial detainee's cell can be challenged under the Fourth Amendment if undertaken at the direction of the prosecutor and aimed at uncovering evidence for use at the detainee's trial.
    
    
43. US v. Gooch, 6 F.3d 673 (9th Cir. 1993)
    

    1. Fourth Amendment protects expectations of privacy in movable, closed containers.
    2. Automobile exception to warrant requirements applies only when vehicle is on open road or is capable of movement and is in place not regularly used for residential purposes, temporary or otherwise.

    
    
44. US v. Good Real Property, 126 US 1126 L.Ed.2d 490, 114 S.Ct. (1993)
    Fifth Amendment due process clause held to generally prohibit federal government from seizing real property in civil forfeiture without prior notice and hearing.
    
    
45. US v. Hall, 47 F.3d 1091 (11 th Cir. 1995)
    Law of trespass forbids intrusions onto land that Fourth Amendment would not proscribe.
    
    
46. US v. Hodge, 19 F.3d 51 (D.C. Cir. 1994)
    US v. Fierro, 38 F.3d 761 (5th Cir. 1994)
    Government has burden to prove consent to search by preponderance of the evidence.
    
    
47. US v. Hogan, 23 F.3d 690 (8th Cir. 1994)
    US v. Garcia, 23 F.3d 1331 (8th Cir. 1994)
    Suspicion is not such "resonable suspicion" as will justify investigatory stop if it is no more than inchoate and unparticularized suspicion or "hunch".
    
    
48. US v. Halliman, 923 F.2d 873 (D.C. Cir. 1991)
    US v. Johnson, 12 F.3d 760 (8th Cir. 1993)
    Police themselves cannot create exigency such that warrant requirements will be suspended under exigent circumstances exception.
    
    
49. US v. Johnson, 9 F.3d 506 (6th Cir. 1993)
    Exigent circumstances justify warrantless entry into residence only where there is also probable cause to enter residence.
    
    
50. US v. Jones, 994 F.2d 1051 (3rd Cir. 1993)
    Probable cause to arrest does not automatically provide probable cause to search arrestee's home.
    
    
51. US v. Kyles, 40 F.3d 519 (2nd Cir. 1994)
    Police officers authority to search premises described in warrant is not unbounded.
    
    
52. US v. Layne, 43 F.3d 127 (5th Cir. 1995)
    Fourth Amendment prohibits general warrants authorizing officials to rummage through person's possessions looking for any evidence of crime.
    
    
53. US v. Lee, 916 F.2d 814 (2nd Cir. 1990)
    Fourth Amendments protection against unreasonable searches and seizures do not extend to abandoned property.
    
    
54. US v. Manuel, 992 F.2d 272 (10th Cir. 1993)
    Exercise of right to refuse consent to search cannot alone be basis of reasonable suspicion supporting detention of suspect.
    
    
55. US v. Mendenhall, 446 US 544,554 (1980)
    The opinion of Justice Stewart was, “A person has been “seized” within the fourth amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” See also:
    Terry v. Ohio, 392 US 1, 16-19 (1968)
    US v. Brigoni-Ponce, 422 US 873, 878 (1975)
    Reid v. Georgia, 448 US 438 (1980)
    
    
    
56. US v. Millan, 36 F.3d 886 (9th Cir. 1994)
    Because interrogation and search were direct result of illegal traffic stop, all evidence had to be suppressed.
    
    
57. US v. Obase, 15 F.3d 603 (6th Cir. 1994)
    Fourth Amendment seizure occurs when police detain an individual under circumstances where reasonable person would feel that he or she is not at liberty to leave.
    
    
58. US v. Padro, 52 F.3d 120 (6th Cir. 1995)
    US v. Mendonsa, 989 F.2d 366 (9th Cir. 1993)
    Anonymous informant's tip alone, without any statement for basis of her knowledge, could not justify finding of probable cause to search.
    
    
59. US v. Parcel Of Land, Etc., 507 US 122 L.Ed.2d 469, 113 S.Ct. (1993)
    An innocent individual who buys land with alleged drug money is entitled to the "innocent owner" defense.
    
    
60. US v. Pierre, 932 F.2d 377 (5th Cir. 1991)
    Although interior of automobile is not subject to same expectations of privacy that exist in one's home, car's interior is protected under Fourth Amendment from unreasonable intrusion by police.
    
    
61. US v. Van Leeuwen, 397 US 249, 25 L.Ed.2d 282, 90 S.Ct. 1029 (1970)
    Garmon v. Foust, 741 F.2d 1069 (8th Cir. 1984)
    The protection of the Fourth Amendment extends to items in the mail.
    
    
62. US v. Prieto - Villa, 910 F.2d 601 (9th Cir. 1990)
    Even if police have a warrant, fact that a person is in the company of person for whom a warrant has been issued does not constitute probable cause for search of that person.
    
    
63. US v. Saadeh, 61 F.3d 510 (7th Cir. 1995)
    Government bears burden of proving by preponderance of evidence that consent to search was freely and voluntarily given.
    
    
64. US v. Scopo, 19 F.3d 777 (2nd Cir. 1994)
    US v. Hassan El, 5 F.3d 726 (4th Cir. 1993)
    Any evidence seized based upon illegal traffic stop is subject to fruit of the poisonous tree doctrine and may be suppressed.
    
    
65. US v. Snow, 919 F.2d 1458 (10th Cir. 1990)
    When law enforcement officer grossly exceed scope of search warrant, suppression of all evidence seized under that warrant is required.
    
    
66. US v. Turner, 169 F.3d 87
    Incriminating nature of computer files containing child pornography was not immediately apparent, despite presence of sexually suggestive image on the screen and file names such as “young and young with breasts.”
    
    
67. US v. Van Cauwenberghe, 814 F.2d 1329 (9th Cir. 1987)
    To prevail on motion for return of seized property, criminal defendant must demonstrate that he is entitled to lawful possession of the seized property, property is not contraband. and either seizure was illegal or government's need for property as evidence has ended.
    
    
68. US v. Warren, 42 F.3d 647 (D.C. Cir. 1994)
    A search by government agents is presumptively unreasonable under Fourth Amendment unless conducted pursuant to warrant issued by judicial officer upon finding of probable cause.
    
    
69. US v. Welliver, 976 F.2d 1148 (8th Cir. 1992)
    One claiming Fourth Amendment violation must show that he had a legitimate expectation of privacy and that the expectation was invaded by government action.
    
    
70. Whalen v. Roe, 429 US 589, 51 L.Ed.2d 64, 97 S.Ct. 869 (1977)
    Rimie v. City Of Hedwig Village, Texas, 765 F.2d 490 (5th Cir. 1985)
    The Constitution protects individuals against invasion of their privacy by the government.
    
    
71. Wong Son v. US, 371 US 471, 9 L.Ed.2d 441, 83) S.Ct. 407 (1963)
    US v. Tedford, 875 F.2d 446 (5th Cir. 1989)
    The "fruit of the poisonous tree doctrine" is not triggered by a rule violation that does not rise to constitutional proportions.

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Selective Prosecution

1. Bar MK Ranches v. Yeuther, 994 F.2d 735 (10th Cir. 1993)
   Administrative agencies are required to follow their own regulations.
   
   
2. Bivens v. Six Unknown Agents, 403 US 388, 29 L.Ed.2d 619, 91 S.Ct. 1999 (1970)
   When a government agent acts in an unconstitutional manner he becomes liable for money damages.
   
   
3. Blackledge v. Perry, 417 US 21, 40 LEM 628, 94 S.Ct. 2098 (1974)
   Guam v. Dergurgur, 800 F.2d 1470 (9th Cir. 1986)
   It is unconstitutional deprivation of due process for government to penalize person merely because he has exercised protected statutory or constitutional right.
   
   
4. Bushanell v. Rossetti, 750 F.2d 298 (4th Cir. 1984)
   Governments prosecutorial power may not be used either to exact releases of related civil rights claims or to retaliate for civil prosecution of such claims.
   
   
5. Curry v. Pucinski, 864 F. Supp. 839 (N.D. IL 1994)
   A court clerk can be sued when critical documents are missing from an individuals appellate record.
   
   
6. Gaudreault v. Municipality Of Salem, Mass., 923 F.2d 203 (1st Cir. 1990)
   O'Neil v. Krezeminski, 839 F.2d 9 (2nd Cir. 1988)
   Police officer who is present at scene and fails to take reasonable steps to protect victim of another officer's use of excessive force in violation of Fourth Amendment can be held liable under § 1983 for nonfeasance.
   
   
7. Mahoney v. Kesery, 976 F.2d 1054 (7th Cir. 1992)
   Police officer who procures prosecution by lying to prosecutor or the grand jury is subject to prosecution.
   
   
8. Meriwether v. Coughlin, 879 F.2d 1037 (2nd Cir. 1989)
   Supervisory liability may be imposed under §1983 when an official has actual or constructive notice of unconstitutional practices and demonstrates "gross negligence" or "deliberate indifference" by failing to act.
   
   
9. North Carolina v. Pearce, 395 US 711, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969)
   Supreme Court coined the phrase "Prosecutorial Vindictiveness."
   
   
10. Sanchez v. US, 49 F.3d 1329 (8th Cir. 1995)
    BIVENS actions are governed by same statute of limitations as §1983 actions.
    
    
11. Strength v. Hubert, 854 F.2d 421 (11th Cir. 1988)
    Freedom from malicious prosecution is a federal right protected by §1983.
    
    
12. US v. Allen, 954 F.2d 1160 (6th Cir. 1992)
    Prosecutors decision in determining which case to prosecute cannot be based on defendant's race, sex, religion, or exercise of statutory or constitutional right.
    
    
13. US v. Armstrong, 48 F.3d 1508 (9th Cir. 1995)
    Colorable basis for selective prosecution entitles defendant to discovery concerning the alleged discrimination.
    
    
14. US v. Cueruelo, 949 F.2d 559 (2nd Cir. 1991)
    US v. Hudson, 982 F.2d 160 (5th Cir. 1993)
    Outrageous conduct defense is available when conduct of government agents is so outrageous that due process principles bar government from invoking judicial process to obtain conviction.
    
    
15. US v. Sneed, 34 F.3d 1570 (10th Cir. 1994)
    "Excessive governmental involvement" occurs when government engineers and directs criminal enterprise from start to finish and defendant contributes nothing more than his presence and enthusiasm.
    
    
16. US v. Solivan, 937 F.2d 1146 (6th Cir. 1991)
    US v. Johnson, 968 F.2d 768 (8th Cir. 1992)
    "Single Misstep" on part of prosecutor may be so destructive of right to a fair trial that reversal is required.
    
    
17. US v. Woods, 36 F.3d 945 (10th Cir. 1994)
    Once defendant meets initial burden on vindictive prosecution claim, burden shifts to government to justify its charging decisions with legitimate, articulable, objective reasons.
    
    
18. Yick Wo v. Hopkins, 118 US 356, 30 L.Ed 220, 96 S.Ct. 1064 (1886)
    Case in which the Supreme Court coined the term "Evil eye and an uneven hand."

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Sentencing

1. A.R.Cr.P Rule 26.13 Concurrent or consecutive sentences.
   The discretion to impose consecutive sentences rests with the discretion of the trial judge.
   
   
2. Alexander v. Perrill, 916 F.2d 1392 (9th Cir. 1990)
   Prison officials who are under duty to investigate claims of computational errors in calculation of prison sentences may be liable for failure to do so when reasonable request is made.
   
   
3. Barden v. Keohane, 921 F.2d 476 (3rd Cir. 1990)
   Individual served a state sentence first where the state judge clearly intended that both the state and succeeding federal sentence be served concurrently. The federal BOP refused to even consider his request that the state time served be considered as 'credit' against his federal sentence. The case carried a "serious potential for miscarriage of justice and warranted habeas relief."
   
   
4. Blackledge v. Perry, 417 US 21, 40 L.Ed.2d 628, 94 S.Ct. 2098 (1974)
   Vindictiveness on the part of the prosecutor.
   
   
5. Blockburger v. US, 284 US 299, 76 L.Ed.2d 306, 52 S.Ct. 180 (1932)
   Consecutive punishments should not be imposed for violations of separate statutes when only one "offense" has been committed.
   
   
6. Bordenkircher v. Hayes, 434 US 357, 54 LEM 604, 98 S.Ct. 663 (1978)
   US v. Droge, 961 F.2d 1030 (2nd Cir. 1992)
   

   1. A trial court may not use the sentencing process to punish a defendant, notwithstanding his guilt. for exercising his right to receive a full and fair trial.
   2. Where trial court imposes lengthy sentence out of personal spite and in retaliation for defendants assertion of his statutory rights, resentencing is required.

7. Boynton v. Anderson, 1 CA-SA 03-0014 , COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT C, 205 Ariz. 45; 66 P.3d 88; 2003 Ariz. App. LEXIS 59; 397 Ariz. Adv. Rep. 41, April 8, 2003, Filed , Released for Publication July 17, 2003. Review denied by Boynton v. Anderson, 2003 Ariz. LEXIS 89 (Ariz., June 30, 2003)
   Where crime of luring a minor for sexual exploitation was not listed as punishable as a "dangerous crime against children," appellate court held that the legislature did not intend the crime to be considered a "dangerous crime against children."
   
   
8. Burns v. US, 501 US 115L.Ed.2d 123, 111 S.Ct. (1991)
   Before departing upward on its own motion from Sentencing Guidelines' sentencing range the district court must give parties reasonable notice that court is contemplating such action.
   
   
9. Cunningham v. California, 549 US (2007)
   Held: the DSL, (determinate sentencing law) by placing sentence - elevating fact-finding within the judges province, violates the defendants right to trial by jury safeguarded by the sixth and fourteenth amendment's, Page 8 - 22.

   a. In Apprendi v. New Jersey, this court held that under the sixth amendment, any fact (other than a prior conviction) that exposes a defendant to a sentence in excess of the relevant statutory maximum must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.

   The Booker court held that "the federal guidelines incompatible with the sixth amendment because they were mandatory and impose binding requirements on all sentencing judges." 543 US at 233

   This court's decisions make plain, falls within the province of the jury employing a beyond a reasonable doubt standard, not the baliwick of a judge determining whether preponderance of the evidence lies.

10. Davis v. Bryan, 889 F.2d 445 (2nd Cir. 1989)
    Prisoner has due process interest in having correct sentence imposed by proper authority. 20 Years
    
    
11. Gideon v. Wainwright, 372 US 335, 9 L.Ed.2d 799, 83 S.Ct. 792 (1963)
    Tucker v. US, 404 US 443, 30 L.Ed.2d 592, 92 S.Ct. 589 (1972)
    A prior conviction in which the defendant was denied his Sixth Amendment right to counsel cannot be used in a later proceeding to support a conviction or enhance the punishment.
    
    
12. Groppi v. Leslie, 404 US 496, 30 L.Ed.2d 632, 92 S.Ct. 582 (1972)
    US v. Barnes, 948 F.2d 325 (7th Cir. 1991)
    Federal Criminal Procedure Rule 32(a) requires that a defendant be given the right to personally address the court before sentence is passed in an attempt to mitigate punishment.
    
    
13. In re James P., 1 CA-JV 06-0074 , COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT D, 214 Ariz. 420; 153 P.3d 1049; 2007 Ariz. App. LEXIS 38; 498 Ariz. Adv. Rep. 23, March 1, 2007, Filed AFFIRMED IN PART, REVERSED IN PART
    A juvenile court erred in concluding that assault was a lesser-included offense of child molestation where assault under Ariz. Rev. Stat. § 13-1203.A.1 contained an element, causing physical injury, which child molestation under Ariz. Rev. Stat. § 13-1410.A did not contain. The evidence was sufficient to convict the juvenile of child molestation.
    
    
14. Jackson v. Schneider, 1 CA-SA 03-0268 , COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT C, 207 Ariz. 325; 86 P.3d 381; 2004 Ariz. App. LEXIS 32; 421 Ariz. Adv. Rep. 5, March 18, 2004, Filed
    Special action petitioner was previously convicted of a misdemeanor. Sentencing court unlawfully imposed lifetime probation. Trial judge wrongfully denied petitioner's request to terminate probation early.
    
    
15. Kellogg v. Shoemaker, 46 F.3d 503 (6th Cir. 1995)
    Focus in determining whether new law violates ex post facto clause is time that offense was committed.
    
    
16. Kelly v. US, 29 F.3d 1107 (7th Cir. 1994)
    Failure to give defendant notice before trial begins that sentence for drug offense may be enhanced as result of prior conviction, deprives district court of jurisdiction to impose enhanced sentence.
    
    
17. Larson v. Farley, 106 Ariz. 119, 471 P.2d 731 (1970)
    A statute should be explained in conjunction with other statutes which relate to the same subject or have the same general purpose.
    
    
18. Mistretta v. US, 488 US 361, 102 L.Ed.2d 714, 109 S.Ct. 647 (1989)
    Case where the new "Sentencing Guidelines" were upheld as being constitutional.
    
    
19. Nichols v. US, 511 US 128 L.Ed.2d 745, 114S.Ct. (1994)
    The use of an uncounseled misdemeanor conviction, as to which prison term was imposed, could be used to enhance a prison term for a subsequent offense (adverse law).
    
    
20. North Carolina v. Pearce, 395 US 711, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969)
    Vindictiveness on the part of the judge.
    
    
21. Note: Prison labor is voluntary. The Constitution prohibits involuntary servitude except as a punishment for a crime. However, judges; must sentence you accordingly, that is either to a term of labor or a Term of imprisonment. However, the government, courts and the establishment do not recognize such distinctions in the law.
    
    
22. Note: Title 18, USC. 3582 authorizes the Attorney General or if the Director of the Bureau of Prisons to file a motion for reduction of sentence. Also, this same law allows for retroactive guideline amendments that reduce either your sentence or offense level.
    
    
23. Note: Sentencing court's refusal to depart downward is reviewable if it rests on misconstruction of its authority to depart.
    
    
24. Nulph v. Faatz, 27 F.3d 451 (9th Cir. 1994)
    Penal law that is applied retrospectively to disadvantage of offender is unconstitutional ex post fact law.
    
    
25. Russell v. Collins, 998 F.2d 1287 (5th Cir. 1993)
    It is impermissible to sentence a person to death solely on basis of acts of accomplice; there must be evidence from which jury could determine defendants individual culpability.
    
    
26. Simmons v. South Carolina, 512 US 129 L.Ed.2d 133, 114 S.Ct. (1994)
    Due process held violated by South Carolina trial court's refusal to allow capital sentencing jury to be informed that defendant was ineligible for parole under state law.
    
    
27. Smith et al. v. Doe et al., 538 US (9th Cir. 2003)
    The Ninth Circuit held "the court's conclusion is not altered by the fact that the acts implementing procedural mechanisms required the trial court to inform the defendant of the acts requirements and, as if possible the period of registration required."
    
    
28. Solem v. Helm, 463 US 277, 77 L.Ed.2d 637, 103 S.Ct. 3001 (1983)
    Eighth Amendment held to proscribe life sentence without possibility of parole for seventh nonviolent felony.
    
    
29. Solem v. Helm, 463 US 277, 292, 103 S.Ct. 3001, 3011, 77 L.Ed.2d 637 (1983)
    Solem set forth a three-part test to determine whether a sentence was disproportionate to the crime and therefore violated the eight amendments prohibition against cruel and unusual punishment Id. The test required examination of the following factors: (a) the severity of the penalty as compared to the seriousness of the offense, (b) the jurisdictions penalty as for crimes that a more serious than the offense at issue (the intra jurisdictional analysis), and (c) the sentences other jurisdictions impose for the same crime (the inter jurisdictional analysis).
    
    
30. State v. Barnett, NO.02 CA 65, 2004 WL3090228, at 26, ∏ 153 (Ohio App. Dec. 28, 2004)
    Courts from around the country have recognized that a criminal defendant whose appeal was pending at the time Blakely was decided does not waive his Blakely-related arguments simply because he did not make those same arguments at trial.
    
    
31. State v. Bartlett, 164 Ariz. 229, 792 P.2d 692
    Defendant was convicted in the Superior Court, Cochise County, No. CR-87-00020,Richard A. Winkler, J., of two counts of sexual conduct with a minor under 15 years of age and sentenced to mandatory minimum consecutive sentences totaling 40 years without possibility of early release. The Court of Appeals affirmed, and the defendant petitioned for further review. The Supreme Court, Corcoran, J., held that defendant's sentences under dangerous crimes against children act of 15 years for first offense and 25 years for second offense were disproportionate to his crimes involving participation in nonviolent, non-incestuous, heterosexual, and consensual sexual intercourse with two 14-year-old girls and therefore violated Eighth Amendment proscription against cruel and unusual punishment. Remanded for re-sentencing.
    
    
32. State v. Brown, 191 Ariz. 102, 103, 952P.2d 746, 747 (App. 1998)
    "We do find fundamental error in trial court's imposition of enhanced sentence. The state alleged pursuant to A. R. S. 13-604.01 that count line was a predicate, to the remaining counts, count to less a predicate to the remaining counts and so on."
    
    
33. State v. Brown, 99 P.3d 15, 2004 WL 2390005 (Ariz.)
    The Supreme Court held that application of statutes 13-702 and 13-702.01 was unconstitutional and the aggravating elements must be submitted to a jury before a sentence can be aggravated. This would be a fundamental error if the judge alone found aggravating circumstances to enhance the defendant sentence, a sixth amendment violation, right to have jury decided factual issues. See Blakely v. Washington at (A7)
    
    
34. State v. Conn, 98 P.3d 881 (Ariz. 2004)
    TT8. Arizona law has long recognized the state's ability to give pre-trial notice of factors that could enhance a defendants sentence.
    
    
35. State v. Cox, 201 Ariz. 464, 468 TT 13P.3d 437, 441 (App.2 2002)
    Imposition of an illegal sentence constitutes fundamental error. Fundamental error is subject to harmless error review. Will be reversed on appeal despite a lack of objection in trial court.
    
    
36. State v. Davis, Arizona Supreme Court No. CR-01-0423-PR , SUPREME COURT OF ARIZONA, 206 Ariz. 377; 79 P.3d 64; 2003 Ariz. LEXIS 132; 415 Ariz. Adv. Rep. 48, October 30, 2003, Filed , US Supreme Court certiorari denied by Arizona v. Davis, 158 L. Ed. 2d 723, 124 S. Ct. 2097, 2004 US LEXIS 3353 (US, May 3, 2004)
    Defendant's 52-year sentence for four counts of sexual misconduct with a minor was grossly disproportionate to his crimes, because the post-pubescent victims were willing participants. They sought out defendant by voluntarily going to his home.
    
    
37. State v. Girdler, 138 Ariz. 482, 675 P.2d 130 (1983) cert. denied, 467 US 1244, 104 S.Ct. 3519, 82 L.Ed.2d 826 (1984)
    State v. Vaughn, 147 Ariz. 28, 708 P.2d 453 (1985)
    When a consecutive sentence is imposed by trial judge must state his reasons for the sentence on the record.
    
    
38. State v. Gonzalez, 216 Ariz. 11, 162 P.3d 650
    Gonzalez argues that the statute under which he was sentenced, § 13-604.01(I), does not include attempted sexual conduct with a victim under the age of twelve. Gonzalez also contends that, although § 13-604.01(A) and (B) provide a sentencing range for, inter alia, sexual conduct with a minor twelve years old or under and with a minor under the age of twelve, respectively, those subsections do not apply to attempted sexual conduct, the relevant offense in this case. Gonzalez argues that, because nowhere in § 13-604.01 is the offense of attempted sexual conduct with a victim under the age of twelve addressed, he was illegally sentenced under that statute. Accordingly, because we conclude that the sentence imposed was illegal under § 13-604.01, we grant the petition for review, grant relief, and remand this matter to the trial court for re-sentencing. It may hold a hearing, if necessary, to establish the victim's age. If the court concludes the victim was eleven years old when Gonzalez committed the offense, it shall re-sentence Gonzalez, as he has requested, in accordance with A.R.S. §§ 13-701 and 13-702.
    
    
39. State v. Hana, 126 Ariz. 575, 576, 617 P.2d 527, 528 (1980)
    Here as in Brown supra all petitioners convictions took place at the same time. Section 604 (M) provides:
    "convictions for two or more offenses committed on the same occasion shall be counted as only one convictions for purposes of this section."
    
    
40. State v. Harrison, 195 Ariz. 1, 4, TT 12, 1985 P.2d 486, 489 (1999)
    Finding that A.R.S. 13-702 (B) requires court to express reason in support of aggravating factors and failure to substantially comply with this requirement mandates that aggravated sentence be vacated.

    TT 13 In State v. Benati; we chose to follow Aprendi's logic and Ring's clear message that a fact exposing defendant to increase sentence, not the actual sentence imposed, is the litmus test. See Ring. For that recently find a logical disconnect in the reasoning of the many courts that have concluded that the need for a right to a jury determination of sentence enhancers is dependent on the sentence actually imposed. The reason we believe, puts the cart before the horse - something we in Ariz. do not permit. TT 14 in this regard we agree with State v. Gross, 201 Ariz. 41, 31 P.3d 815 (App. 2001) when it emphasized that "the relevant inquiry is law that none of form, but of effect - does that required finding expose the defendant to a grader punishment and then authorized by the jury's guilty verdict?" Aprendi: 530 US at 494, 120 S.Ct. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d at 457. If it does, then it is the fundamental equivalent of an element of a grader offense than the one covered by the jury's guilty verdict. Indeed it fits squarely within the usual definition of an "element of the offense." Id. at 494 n.19, 120 S.Ct. (at 2365 n.19, 147 L.Ed.2d at 457 n. 19)

41. State v. Harrison Jr., 195 Ariz.1, 985 P.2d 486 (1999) (en Banc)
    A.R.S. 13-702 (B) must set forth factual findings and reasons in support of aggravating and mitigating factors in support of such findings and set forth on the record at the time of sentencing. The court's words in State v. Holstun, 139 Ariz. 196, 677 P.2d 1304 (App. 1983) bear repetition: there is a value in requiring every sentencing judge to say why he or she is enhancing or reducing a sentence [from the presumptive term]. Such a practice can bring to light the judges occasional misapprehension of the facts, it ensures that the judge is not relying on matters that are not properly aggravating or mitigating, and tends to a sure that judges will give slot to whether or not each sentence, even a stipulated one, is appropriate. In the case of an aggravated sentence it affirms the defendants individuality while driving home to him the severity of the consequence of his crime. In the case of a vacated sentence it explains to the community lie a convicted person is receiving a lesser sentence and others who violated the same law... The requirement that reasons for sentencing be articulated helps ensure the process does not become purely mechanical. 139 Ariz. at 197, 677P.2d at 1305.
    
    As the Court of Appeals has said, the victim, the defendant and the public have the right to know why a particular sentence was imposed... Substantial compliance will suffice, but at a minimum this means articulating at sentencing the facts that judge considered to be aggravating or mitigating and explaining how these factors led to the sentence and pilots. Anything less would force the appellate courts as well as the victim, the defendant, and the public to speculate or infer. A harmless error will leg is essentially affirms the judge's decision so long as the record contains facts that may support the result. While such a rule may be appropriate for most situations, we believe it is inappropriate for most situations, we believe it is inappropriate when a trial judge imposes an aggravated or mitigating sentence because A.R.S. 13-702 expressly prohibits searching beyond sentencing transcript for support for the imposed sentence... Substantial compliance means that the factors supporting an aggravated or mitigating sentence must be in the sentencing transcript. The Galliano down would be to conduct a harmless error analysis...
    
    
42. State v. Henderson, 209 Ariz. 300,100 P.3d 911 (App. 2004)
    Resendis - Felix. We will find error harmless only if we conclude, beyond a reasonable doubt, but the error did not contribute to or affect the sentence imposed. If a reasonable doubt exists on whether the air has affected the outcome, and the error is not harmless, in the case must be remanded for a new sentencing hearing. See: State v. Sansing, 206 Ariz. 232, 77 P.3d 30 (2003);Resendis - Felix.
    
    
43. State v. Hutton, 87 Ariz 176
    Defendant pleaded guilty to one count of first-degree burglary and one count of grand theft. The grand theft charge arose out of defendant's stealing a saddle from a building that he had burglarized. The trial court convicted defendant on the two charges and imposed consecutive sentences. Defendant sought review of the trial court's judgment. On appeal, the court modified the trial court's decision, exercising its power under Ariz. Rev. Stat. § 13-1717(B) to impose concurrent sentences to be served by defendant in the interest of justice. The court otherwise affirmed the trial court's ruling, holding that defendant could be sentenced for both offenses because he actually committed the separate acts of first-degree burglary and grand theft. The court modified the trial court's judgment convicting defendant of first degree burglary and grand theft so that the sentences would run concurrently, and affirmed the trial court's judgment as modified.
    
    
44. State v. Johnson, 23 Ariz. 358, 360, 903 P.2d 1116, 1118 (App. 1995)
    Concluding court may convene a second jury to try allegation of prior conviction and nothing in rules or statute prohibits practice.
    
    
45. State v. Jordan, 126 Ariz. 283, 286, 614P.2d 825, 828 (1980)
    US v. Hankton, 432 F.3d 779 (7th Cir. 2005)
    A defendant has due process right to be sentenced on basis of accurate information.
    
    
46. State v. Munninger, 209 Ariz. 473, 104 P.3d 204
    Defendant was convicted by jury of aggravated assault with finding that offense was dangerous, and the Superior Court, Maricopa County, Cause No. CR2002-091835, Alfred M. Fenzel, J., imposed aggravated sentence. Defendant appealed. The Court of Appeals vacated defendant's sentence, but granted State's motion for reconsideration.
    
    Holdings: On reconsideration, the Court of Appeals, Lankford, P.J., held that:
    Defendant did not waive error under Blakely v. Washington;
    Single properly found aggravating factor did not satisfy Blakely when sentence also rested on other aggravating factors;
    Error in failing to submit to jury aggravating factor of extraordinary severity of harm to victim was harmless;
    Error in failing to submit to jury aggravating factor of viciousness of defendant's actions was not harmless;
    Relying on aggravating factor of use of dangerous instrument or deadly weapon was improper as double-counting this fact; and
    Remand was required for trial court to reweigh aggravating and mitigating factors. Vacated and remanded.
    
    
47. State v. Patience, 944 P.2d 381
    Defendant pleaded guilty and was convicted in Third District Court, Pat B. Brian, J., of attempted forgery, and defendant appealed sentence. The Court of Appeals, Jackson, J., held that: (1) defendant was entitled to benefit of lesser penalty afforded by amended statute that was in effect prior to sentencing; (2) statements at sentencing hearing of defendant's previous employer concerning prior incidents of embezzlement were properly considered; and (3) doctrine that theft counts may be consolidated into one offense does not apply to forgery cases. Affirmed in part and reversed in part and remanded.
    
    
48. State v. Patton, No. 1 CA-CR 5143, Court of Appeals of Arizona, Division One, Department B, 136 Ariz. 243; 665 P.2d 587; 1983 Ariz. App. LEXIS 443, April 7, 1983 Reversed.
    Defendant's conviction for sexual assault upon a trial for child molestation was reversed because sexual assault was not a lesser-included offense. However, double jeopardy did not prevent his re-trial on a proper charge of sexual assault.
    
    
49. State v. Pena, 104 P.3d 873 (Ariz. App. Div. 1 2005)
    Defendant argues that we must remand for resentencing because the court improperly found the aggravating circumstances of serious physical injury and emotional harm to the victim. He argues that by statute, an element of the offense cannot be used as an aggravating factor. Whether it is an element of the offense is a question of law that we review de novo.
    
    
50. State v. Poling, 125 Ariz. 90, 11, 606 P.2d 827, 829 (App. 1980)
    As the Court of Appeals has said, it would be "better practice for a trial judge to state in the more precise terms of the statute" that he or she has found or considered certain specific circumstances. Not only is this better practice, it is required by present statute.
    
    
51. State v. Ramsey, 136 Ariz.166, 665 P.2d 48, 1983 Ariz. LEXIS 189
    We have always assumed and we so hold now, that the state must prove the existence of aggravating circumstances beyond a reasonable doubt.
    
    
52. State v. Ring, 204 Ariz. 534, 6 5P.3d 915 (2003) (Ring 3)
    Our Supreme Court essentially rejected its analysis in the capital sentencing context, finding 6th amendment - complaint factor insufficient, in and of itself to permit a trial court to find additional aggravating factors, notwithstanding that an Ariz. capital defendant technically becomes eligible for the death penalty when a single capital aggravating factor is established. In Ring 3 our Supreme Court found that the state had to narrowly construed the US Supreme Court's holding in Ring v. Ariz. 536 US 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring 2), ruling instead that Ring 2 requires any jury finding each aggravating factor. We cannot find embraced within the Legislature's intent the concept the state urges here---having both the jury and record finding aggravating factors under different standards. In sum, we can find no principal between the considerations grounding in Ring 3, in which our Supreme Court rejected the same argument the state advanced in the capital context and the application of those same considerations in non-capital context. Absent weighing all aggravators A.R.S. 13-702 prescribes cannot occur if a jury has not found beyond a reasonable doubt each aggravating factor the court considers. TT 13 (Harmless error) the state further argues that any error was harmless. Blakely error is subject to a harmless error analysis Resendis - Felix. We will not consider harmless any finding of an aggravating factor is evidence and witness credibility could be laid differently by a jury and it was by a sentencing judge.
    
    
53. State v. Shepler, No. 2 CA-CR 3358, Court of Appeals of Arizona, Division Two, 141 Ariz. 43; 684 P.2d 924; 1984 Ariz. App. LEXIS 422, June 26, 1984
    A defendant's consecutive sentences of probation were modified so as to provide that the terms of probation were to run concurrently because the "stacking" of defendant's probationary term was unlawful.
    
    
54. State v. Stewart, 139 Ariz. 50, 676P.2d 1108 (1984)
    As long as the convictions are for distinct and separate crimes, consecutive sentences are proper if the trial judge sets out his reasons for consecutive sentences.
    
    
55. State v. Suniga, 145 Ariz. 389
    Once defendant began to serve a lawful sentence, he could not be sentenced to an increased term. To do so violated the constitutional proscription against double jeopardy.
    
    
56. State v. Timmons, 103 P.3d 315, 2005 WL 30494 (Ariz. App. Div. 2, 2005)
    Division I of Court of Appeals held one Blakely complaint factor increases the maximum prison sentence outweighed by any guilty verdict or plea to the aggravated term from the offense.
    
    
57. State v. Tschilar, 200 Ariz. 427, 432 TT 15, 27 P.2d 331, 336 (App. 2001)
    The court does considered the emotional harm of the victim as an aggravating factor. Defendant argues that the record is devoid of any evidence of emotional harm. The state does not responded to this contention and thereby confesses error. See: In Re US Currency in amount of $26,980, 199 Ariz. 291, 297 TT 20, 18 P.3d 85, 91 (App. 2000)
    
    
58. State v. Tsinnijinnie, 1 CA-CR 02-0958 , COURT OF APPEALS OF ARIZONA, DIVISION ONE, DEPARTMENT D, 206 Ariz. 477; 80 P.3d 284; 2003 Ariz. App. LEXIS 199; 414 Ariz. Adv. Rep. 8, December 11, 2003, Filed , Review denied by State v. Tsinnijinnie, 2004 Ariz. LEXIS 78 (Ariz., June 29, 2004) Affirmed in part, reversed in part
    Trial court's sentencing of defendant to concurrent sentences was reversed; pursuant to applicable statute, the trial court was required to impose consecutive sentences for defendant's convictions for sexual assault and molestation of a child.
    
    
59. State v. Viramontes, 204 Ariz. 360, 64 P.3d 188
    Upon further appeal, the Supreme Court, Zlaket, Retired Justice, consolidated the cases and held that: (1) aggravating factors set out in death or life imprisonment sentencing statute were the only factors the trial court could consider in first-degree murder prosecutions in which the state had not sought the death penalty, and thus trial court could not consider factors contained in felony sentencing statute during sentencing, and (2) aggravating factors only needed to be supported by reasonable evidence in non-capital cases. Vacated and remanded.
    
    
60. State v. Vargas-Burgos, 162 Ariz. 325, 783 P.2d 264
    Defendant pled no contest in the Superior Court, Pima County, Cause No. CR-24337, Thomas Meehan, J., to charge of unlawful possession of marijuana. State appealed from sentence imposed by trial court. The Court of Appeals, Howard, J., held that: (1) trial court's failure to impose mandatory fine raised question of subject matter jurisdiction which was not waived by State's failure to object below, and (2) sentence not in compliance with mandatory provisions of sentencing statute was illegal and appealable. Sentence vacated and matter remanded.
    
    
61. State v. Watson, 134 Ariz. 1, 4, 653 P.2d 351, 354 (1982)
    We have said that minimal competence at the sentencing stage requires the attorney at least "to challenge the admission of aggravating evidence where reasonably possible and to present available mitigating evidence."
    
    
62. State v. Waggoner, 144 Ariz. 237, 238, 697 P.2d 320, 321 (1985)
    Four days before trial, the state filed an allegation under A.R.S. 13-604.01 (now A.R.S. 13-604.02 (2001)) that the defendant committed offense while on parole, which mandated prison term. Defendant argued timeliness of pre-trial motion A.R.Cr.P. 16.1 (b) require, 20 days before trial. Trial court found allegation true and resentenced defendant.
    
    
63. State v. Wagstaff, 164 Ariz. 485, 492, 794, P.2d 11/8, 125 (1990)
    Thus redundancy in the statute specially as it applies to attempted child molestation creates constitutional uncertainty. Uncertainty in a criminal statute, the conduct is forbidden, or the punishment imposed.
    
    
64. US v. Alvarez, 51 F.3d 36 (5th Cir. 1995)
    District court may impose sentence below statutory minimum only on government's motion and only for purpose of reflecting defendant's substantial assistance.
    
    
65. US v. Anderson, 5 F.3d 795 (5th Cir. 1993)
    Departure based on circumstances already adequately considered by Sentencing Guidelines is incorrect application of the Guidelines.
66. US v. Arrellano - Rios, 799 F.2d 520 (9th Cir. 1986)
    Narcotics offenses are not "crimes of violence" within meaning of statute prohibiting use of firearm in connection with those crimes.
    
    
67. US v. Austin, 54 F.3d 394 (7th Cir. 1995)
    Double counting is not permitted under Sentencing Guidelines.
    
    
68. US v. Becker, 36 F.3d 708 (7th Cir 1994)
    Generally, in absence of language to contrary, sentences imposed on more than one offense at same time are presumed to run concurrently.
    
    
69. US v. Bost, 968 F.2d 729 (8th Cir. 1992)
    US v. Baker, 961 F.2d 1390 (8th Cir. 1992)
    Government bears burden of proof in establishing enhancement under Sentencing Guidelines.
    
    
70. US v. Brady, 26 F.3d 282 (2nd Cir. 1994)
    Criminal or penal law is ex post facto if it is retrospective and it disadvantages affected offender.
    
    
71. US v. Brown, 47 F.3d 198 (7th Cir. 1995)
    Defendants need not "come clean" on relevant conduct beyond offense of conviction in order to obtain reduction in Sentencing Guidelines offense level for acceptance of responsibility.
    
    
72. US v. Cantu, 12 F.3d 1506 (9th Cir. 1993)
    Posttraumatic Stress Disorder, an emotional illness, can be the basis for downward departure on the basis of "significantly reduced mental capacity."
    
    
73. US v. Chatlin, No. 94-10247, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 51 F.3d 869; 1995 US App. LEXIS 6618; 95 Cal. Daily Op. Service 2400; 95 Daily Journal DAR 4162, November 4, 1994, * Submitted* The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4., April 3, 1995, Filed
    Defendant's sentence for sexual abuse of a minor on an Indian reservation was not proper because the lower court relied on aggravated sexual abuse as an additional ground for its departure from the sentencing guidelines.
    
    
74. US v. Condelee, 961 F.2d 1351 (8th Cir. 1992)
    Sentencing judge has the authority to depart downward from sentencing guidelines without any government motion in unusual circumstances such as extraordinary restitution.
    
    
75. US v. Cooper, 35 F.3d 1248 (8th Cir. 1994)
    Sentencing court should apply Sentencing Guidelines in effect at time of sentencing unless doing so is violative of ex post facto clause.
    
    
76. US v. Curran, 925 F.2d 59 (1st Cir. 1991)
    US v. Mueller, 902 F.2d 336 (5th Cir. 1990)
    Defendants, including those who plead guilty, have a due process right to be sentenced upon information which is not false or materially incorrect.
    
    
77. US v. Davidson, No. 00-50033 , UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 246 F.3d 1240; 2001 US App. LEXIS 7153; 2001 Cal. Daily Op. Service 3100; 2002 Daily Journal DAR 3827, December 7, 2000, Argued and Submitted, Pasadena, California , April 19, 2001, Filed
    Amendment of probation to include sex offender registration vacated where the federal crime to which appellant plead guilty was not punishable, at the time he committed it, as a state law offense requiring registration.
    
    
78. US v. Davis, 906 F.2d 829 (2nd Cir. 1990)
    Chapman v. US Dept. Of Health & Human Services, 821 F.2d 523 (10th 1987)
    

    1. Under doctrine of "Dual Sovereignty" federal prosecution does not bar subsequent state prosecution of same person for same acts, and state prosecution does not bar federal one.
    2. Exception to doctrine of "Duel Sovereignty" exists which bars successive prosecutions if one prosecuting sovereign can be said to be acting as "tool" of other, of it one prosecution is merely sham and cover for another.

    
    
79. US v. De Albs Pagan, 33 F.3d 125 (1st Cir. 1994)
    District court's failure to afford defendant right of allocation or its functional equivalent required vacation of sentence.
    
    
80. US v. DeCosta, 37 F.3d 5 (1st Cir. 1994)
    Sentencing court is entitled to depart from Sentencing Guidelines in cases that fall outside "heartland" contemplated by guidelines.
    
    
81. US v. Dean, No. 06-30562, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 238 Fed. Appx. 320; 2007 US App. LEXIS 19416, July 10, 2007, Argued and Submitted, Seattle, Washington, August 10, 2007, Filed, PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
    In sentencing defendant for, inter alia, interstate transportation with intent to engage in criminal sexual activity, district court plainly erred by failing to inform him that it was considering sentence more than twice the top-end of advisory USSG range, as required by Fed. R. Crim. P. 32(h), as failure seriously affected fairness of proceeding.
    
    
82. US v. Demers, 13 F.3d 1381 (9th Cir. 1993)
    Sentencing Guidelines commentary regarding role in offense adjustment, by mandating fact based inquiry into relative seriousness of defendant's offense of conviction compared to his actual criminal convicted of possession with intent to distribute, provided his role and culpability in trafficking scheme are sufficiently minor compared to that of other participants.
    
    
83. US v. Dolt, 27 F.3d 235 (6th Cir. 1994)
    Prior convictions requirement of Sentencing Guidelines' career offender provision is to be interpreted strictly.
    
    
84. US v. Epley, 52 F.3d 571 (6th Cir. 1995)
    Court of Appeals may review sentence based on legal error, even if within range of Sentencing Guidelines.
    
    
85. US v. Evans-Martinez, No. 05-10280, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 530 F.3d 1164; 2008 US App. LEXIS 13972, April 7, 2006, Argued and Submitted, San Francisco, California, July 2, 2008, Filed
    Defendant's sentence was vacated and the matter was remanded for resentencing because the court failed to provide notice of its intent to depart from the sentencing range suggested by the sentencing guidelines as required by Fed. R. Crim. P. 32(h) after he pled guilty to sexual abuse of a minor, sexual exploitation of minors and witness tampering.
    
    
86. US v. Fendley, No. 90-50085, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 1991 US App. LEXIS 4846, January 10, 1991, Submitted, ** Pasadena, California** The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4., March 20, 1991, Filed , THIS DISPOSITION IS NOT APPROPRIATE FOR PUBLICATION AND MAY NOT BE CITED TO OR BY THE COURTS OF THIS CIRCUIT EXCEPT AS PROVIDED BY THE 9TH CIR. R. 36-3. , Reported as Table Case 928 F.2d 1137, 1991 US App. LEXIS 9707
    District court's denial of an acceptance of responsibility departure in sentencing was reversed and remanded where it was unclear from the record whether a defendant's denial of a separate crime was equivalent to a denial of the offense conduct.
    
    
87. US v. Fones, 51 F.3d 663 (7th Cir. 1995)
    Application of new guideline which would result in imposition of more severe sentence would constitute violation of ex post facto clause.
    
    
88. US v. Fortier, 911 F.2d 100 (8th Cir. 1990)
    Confrontation clause also applies at sentencing.
    
    
89. US v. Fox, 941 F.2d 480 (7th Cir. 1991)
    Defendant whose crimes occurred before the November 1st, 1987 effective date of Sentencing Guidelines, was not subject to Sentencing Guidelines.
    
    
90. US v. Furman, 31 F.3d 1034 (10th Cir. 1994)
    In imposing sentence, sentencing court may consider various factors including need to avoid unwarranted sentencing disparity among codefendants involved in same criminal activity.
    
    
91. US v. Goins, 51 F.3d 400 (4th Cir. 1995)
    US v. Gessa, 57 F.3d 493 (6th Cir. 1995)
    US v. Logan, 54 F.3d 452 (8th Cir. 1995)
    Violation of criminal rule concerning plea hearings cannot be considered harmless if defendant had no knowledge of mandatory minimum sentence at time of plea.
    
    
92. US v. Gonzales, 12 F.3d 298 (1st Cir. 1993)
    US v. Chincy, 1 F.3d 1501 (6th Cir. 1993)
    Sentencing court must apply guideline in effect at time of sentencing.
    
    
93. US v. Greene, 41 F.3d 383 (8th Cir. 1994)
    US v. Sanders, 41 F.3d 480 (9th Cir. 1994)
    Government bears burden of proving of fact of prior conviction for purposes of sentence enhancement under Sentencing Guidelines.
    
    
94. US v. Harrison - Philpot, 971 F.2d 234 (9th Cir. 1992)
    US v. ROSA, 946 F.2d 505 (7th Cir. 1991)
    Government has the burden of presenting sufficient evidence to allow the district court to properly determine the amount of drugs: burden is not on the defendant.
    
    
95. US v. Hayes, 49 F.3d 178 (6th Cir. 1995)
    Defendant may appeal his sentence even when sentence imposed falls within range advocated by defendant, as long as defendant can identify specific legal error.
    
    
96. US v. Hays, 899 F.2d 515 (6th Cir. 1990)
    Three part test used in reviewing sentencing court's decision to depart from guidelines requires determination of whether case was sufficiently unusual to warrant departure, whether circumstances relied on to support departure actually existed, and whether weight given to particular aggravating or mitigating was reasonable.
    
    
97. US v. Herndon, 982 F.2d 1411 (10th Cir. 1992)
    When judge sentences are wrong, sentencing guideline range constitutes fundamental error affecting substantial rights.
    
    
98. US v. Hicks, 948 F.2d 877 (4th Cir. 1991)
    False statement made by defendant to probation officer during pre-sentence interview about amount of attorney fees defendant had paid was material so as to justify two level upward adjustment in base offense level (Authors note: although it is not required by law that counsel be present you should never talk to a parole of probation officer unless counsel is present).
    
    
99. US v. Hill, 53 F.3d 1151 (10th Cir. 1995)
    Government must prove sentence enhancement by preponderance of evidence.
    
    
100. US v. HOLLIS, 718 F.2d 277 (8th Cir. 1983)
     Seritt v. State Of Alabama, 731 F.2d 728 (11th Cir. 1984)
     Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to severity of the crime.
     
     
101. US v. Howard, 894 F.2d 1085 (9th Cir. 1990)
     The government bears the burden of proof if it is attempting to adjust the legal level upward, but the defendant bears the burden of proof if he is attempting to lower the offense level.
     
     
102. US v. Hoyungowa, 930 F.2d 744 (9th Cir. 1991)
     US v. Beaulieu, 900 172d 1531 (10th Cir. 1990)
     Remand was required where sentencing court failed to explain level of its upward departure sentence.
     
     
103. US v. Hulshof, 23 F.3d 1470 (8th Cir. 1994)
     Government bears burden of proving disputed facts at sentencing by preponderance of evidence.
     
     
104. US v. Jackson, 32 F.3d 1101 (7th Cir. 1994)
     Defendants must receive advance notice of all proposed enhancements or adjustments in pre-sentence report, the prosecutor's recommendation. or from sentencing judge well in advance of sentencing.
     
     
105. US v. Jenkins, 58 F.3d 611 (11th Cir. 1995)
     When a criminal statute is ambiguous in its application to certain conduct, rule of lenity requires it to be construed narrowly.
     
     
106. US v. Juvenile Male, 819 F.2d 468 (4th Cir. 1987)
     Critical date for determining the law to be applied in ex post facto analysis is date when the crime was committed, not when defendant was sentenced.
     
     
107. US v. Kammerdiener, 945 F.2d 300 (9th Cir. 1991)
     Under the sentencing guidelines, for conviction may not be included in a defendants criminal history calculation.
     
     
108. US v. Kaufman, 951 F.2d 793 (7th Cir. 1992)
     Judgment which lacks finality cannot authorize imprisonment of defendant.
     
     
109. US v. Keller, 58 F.3d 884 (2d Cir. 1995)
     Generally a sentence in court must use the version of the guidelines in effect at the time of defendants sentencing not that extant at the time the offense was committed. Yet when the guidelines are amended provision calls for a more severe penalty in the original on, the guidelines in effect at the time the offense was committed covering the imposition of sentence. The reason for this is to avoid violation of the ex pos facto clause of the Constitution.
     
     
110. US v. Khang, 904 F.2d 1219 (8th Cir. 1990)
     

     1. The Sentencing Guidelines must be strictly construed.
     2. Guideline Sentencing is adversarial proceeding; burden of proof falls on party asserting the sentencing adjustment.

     
     
111. US v. Kienenberger, 13 F.3d 1354 (9th Cir. 1994)
     Ex post facto clause prohibits any statute, which makes more burdensome punishment for crime, after its commission.
     
     
112. US v. Kirk, 894 F.2d 1162 (10th Cir. 1990)
     Government bears burden of proof for sentence increases under sentencing guidelines while defendant bears burden of proof for 220 year sentence decreases: evidence which does not preponderate or is in equipoise fails to meet required burden of proof.
     
     
113. US v. Lande, 40 F.3d 329 (10th Cir. 1994)
     At sentencing hearing, burden rests on government to establish by a preponderance of the evidence the type and quantity of methamphetamine involved in the offense.
     
     
114. US v. Leung, 40 F.3d 577 (2nd Cir. 1994)
     Defendant's race or nationality may play no adverse role in administration of justice, including at sentencing.
     
     
115. US v. Maggi, 44 F.3d 478 (7th Cir. 1995)
     Sentence based on incorrect Sentencing Guidelines range constitutes error affecting substantial rights and thus can constitute plain error, even though error is of less than four levels.
     
     
116. US v. McNeese, 901 F.2d 585 (7th Cir. 1990)
     US v. Jones, 908 F.2d 365 (8th Cir. 1990)
     Under BIFULCO rule of lenity, criminal penalties must be narrowly construed; any ambiguity in criminal statute, including sentencing, must be resolved in favor of lenity.
     
     
117. US v. Meyers, 32 F.3d 411 (9th Cir. 1994)
     Harmless error rule does not apply to law of contractual plea agreements.
     
     
118. US v. Monaco, 852 F.2d 1143 (9th Cir. 1988)
     Failure to individualize sentence compels reversal or resentencing.
     
     
119. US v. Montmayor, 703 F.2d 109 (5th Cir. 1983)
     Under "concurrent sentence doctrine," existence of one valid conviction may make unnecessary review of other convictions when concurrent sentences have been given.
     
     
120. US v. Naas, 755 F.2d 1133 (5th Cir. 1985)
     US v. Jones, 841 F.2d 1022 (10th Cir. 1988)
     Ambiguity in definition of conduct to be punished must be settled against turning single transaction into multiple offenses.
     
     
121. US v. Nottingham, 898 F.2d 390 (3rd Cir. 1990)
     Despite mandatory language of guidelines requiring consecutive terms for crimes committed on parole, district court had discretion to impose concurrent or consecutive sentences.
     
     
122. US v. Osmani, 20 F.3d 266 (7th Cir. 1994)
     Mere fact that defendant goes to trial does not automatically disqualify him from reduction pursuant to United States Sentencing Guidelines for acceptance of responsibility.
     
     
123. US v. Paris, 812 F.2d 417 (9th Cir. 1987)
     When there is substantial disparity in sentences imposed on defendants engaged in the same criminal activity and defendant's constitutional right to stand trial is implicated, proper reasons for the disparity must be readily discernible from the record.
     
     
124. US v. Pinnick, 47 F.3d 434 (D.C. Cir. 1995)
     US v. Williams, 46 F.3d 57 (10th Cir. 1995)
     Anderson v. US, 405 F.2d 492, 493 (10th Cir. 1995 per curiam cert. denied 394 US 965)
     A criminal sentence must be definite and certain.
     
     
125. US v. Pito, 433 F.3d 53 (1st Cir. 2006)
     Regardless of length of a sentence based on an error of law is per se unreasonable.
     
     
126. US v. Ponce, 51 F.3d 820 (9th Cir. 1995)
     While hearsay statements may be considered at sentencing, due process requires that such statements be corroborated by extrinsic evidence.
     
     
127. US v. Reed, 49 F.3d 895 (2nd Cir. 1995)
     When sentencing court resolves disputed issue of fact, it is required to state its findings with sufficient clarity to permit appellate review.
     
     
128. US v. Reese, 33 F.3d 166 (2nd Cir. 1994)
     Guidelines to be used when imposing sentence are those in effect on date of sentencing, unless ex post facto concerns are implicated.
     
     
129. US v. Restrepo, 986 F.2d 1462 (2nd Cir. 1993)
     US v. Chasmer, 952 F.2d 50 (3rd Cir. 1991)
     US v. Khoury, 901 F.2d 975 (11th Cir. 1990)
     Where conflict existed between oral pronouncement of sentence and judgment, oral controlled.
     
     
130. US v. Restrepo, 999 F.2d 640 (2nd Cir. 1993)
     Defendant's status as an alien may serve as a basis for downward departure under the Sentencing, Guidelines.
     
     
131. US v. Robinson, 20 F.3d 270 (7th Cir. 1994)
     Sentence based on incorrect guideline range constitutes error affecting substantial rights and can thus constitute plain error.
     
     
132. US v. Romero, 57 F.3d 565 (7th Cir. 1995)
     Court may not enhance defendant's sentence for obstruction of justice merely for reason that defendant testified at trial and lost.
     
     
133. US v. Sarault, 975 F.2d 17 (1st Cir. 1992)
     US v. Califano, 978 F.2d 65 (2nd Cir. 1992)
     When sentencing court determines that departure is warranted, it enjoys substantial leeway in determining extent of departure, and its decision in this regard will be reviewed for reasonableness,
     
     
134. US v. Shoupe, 35 F.3d 835 (3rd Cir. 1994)
     Sentencing court may depart downward on defendant's offense level if defendant's career offender status over represents his criminal history and likelihood of recidivism.
     
     
135. US v. Simpson, 8 F.3d 546 (7th Cir. 1993)
     US v. Villagrana, 5 F.3d 1048 (7th Cir. 1993)
     Due process requires that defendant be sentenced on basis of accurate information.
     
     
136. US v. Smith, 893 F.2d 1573 (9th Cir. 1990)
     Defendants sentence may not be enhanced based on his failure to cooperate by implicating others.
     
     
137. US v. Stites, 56 F.3d 1020 (9th Cir. 1995)
     US v. Alpert, 28 F.3d 1104 (11th Cir. 1994)
     Disappearing from jurisdiction and not disclosing one's whereabouts to government does not warrant enhanced punishment for obstruction of justice.
     
     
138. US v. Stoneking, 34 F.3d 651 (8th Cir. 1994)
     Sentencing Guidelines permit, but do not mandate, retroactive application of amended provision for calculating drug quantity to previously sentenced individual.
     
     
139. US v. Streich, 987 F.2d 104 (2nd Cir. 1993)
     US v. Cantero, 995 F.2d 1407 (7th Cir. 1993)
     Government bears brunt of establishing by preponderance of evidence that facts justify an upward adjustment of defendants offense level under the Sentencing Guidelines.
     
     
140. US v. Thomas, 961 F.2d 1110 (3rd Cir. 1992)
     It was error to make upward departure to compensate for governments decision not to charge defendant with more serious crime.
     
     
141. US v. Tillman, 8 F.3d 17 (11th Cir. 1994)
     Government carries burden of persuasion with respect to inclusion of negotiated but undelivered amounts of drugs in sentencing calculations.
     
     
142. US v. Tolliver, 61 F.3d 1189 (5th Cir. 1995)
     Where three charges of possession of firearm in relation to drug offense were predicated on single conspiracy count, consecutive sentences could not be imposed.
     
     
143. US v. Torres, 53 F.3d 1129 (10th Cir. 1995)
     When sentencing drug conspiracy defendants, government bears burden of proving, by preponderance of evidence, quantities of drugs attributable to each defendant.
     
     
144. US v. Washington, 44 F.3d 1271 (5th Cir. 1995)
     If defendant is not afforded opportunity to speak on his own behalf before sentence is imposed, resentencing is required.
     
     
145. US v. Webb, 30 F.3d 687 (6th Cir. 1994)
     Defendant could not be sentenced to additional term of supervised release following his imprisonment upon revocation of his initial term of supervised release.
     
     
146. US v. Webster, 995 F.2d 209 (9th Cir. 1993)
     Remand was required to determine whether defendant was entitled to downward adjustment under Sentencing Guidelines on grounds that he was minor participant in the offense, where district court made no factual findings regarding defendant's role and culpability with regard to relevant conduct, including collateral conduct beyond charged offense.
     
     
147. US v. Wilson, 503 US 1117 L.Ed.2d 593, 112 S.Ct (1992)
     Federal sentencing credit under Title 18 (3585[b]) for certain pre-sentence time served held required to be computed by the Attorney General after convicted federal defendant began to serve sentence.
     
     
148. Wasman v. States, 468 US 559, 82 LEM 424, 104 S.Ct. 3217 (1984)
     After re-trial and conviction following a successful appeal, sentencing authority could justify an increased sentence based on conduct subsequent to original sentencing.
     
     
149. Weaver v. Graham, 450 US 24, 67 L.Ed.2d 17, 101 S.Ct. 960 (1981)
     US v. Arzate - Nunez, 18 F.3d 730 (9th Cir. 1994)
     The Ex Post Facto clause prohibits the enactment of laws that either impose punishments for acts not punishable at the time they were committed or increase punishment over that previously prescribed.
     
     
150. Wilson v. US, 962 F.2d 996 (11th Cir. 1992)
     Defendant has constitutional right to effective assistance or counsel at sentencing.

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Sexual Abuse

1. State v. Bartlett, (1992) 171 Ariz. 302, 830 P.2d 823, cert. denied, 113 S.Ct. 511, 506 US 992, 121 L.Ed.2d 445
   Sentence of 40 years without possibility of early release was grossly disproportionate to offense of sexual conduct with minors, two girls just under 15 years of age, in light of girls testimony that sex was consensual, absence of violation or any threats of violence by defendant, defendants lack of prior record of any crime, let alone crime involving children, and reality that sexual conduct among post pubescent teenagers was not uncommon.
   
   
2. State v. Patton, (App. 1983) 136 Ariz. 243, 665 P.2d 587
   Since the sexual abuse statute, 13-1401 prohibits any direct or indirect fondling manipulating of any part of the genitals, anus, or female breasts of a person under the age of 15, and the child molesting statute, 13-1410 prohibits any person from causing a child under the age of 15 to fondle, play with, or touch the private parts, which include the gentle and excretory organ but not the female breasts, fondling the breasts of a female under the age of 15 may amount to sexual abuse under 13-1404, but it is not child molesting, and sexual abuse is not a lesser included offense of child molesting.

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S.O.T.P.

1. US v. Antelope, 395 F.3d 1128 (9th CIR. 2005)
   As long as a defendant retains his right to appeal use in court of information obtained in psycho-sexual counseling constitutes a 5th Amendment right violation as it causes a person to incriminate oneself.
   
   
2. Note: It is always best to get an order from the court regarding use immunity of defendants statements if a defendant retains his right to appeal and will be ordered by the court to participate in sex offender treatment program.

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Speedy Trial

1. Barker v. Wingo, 407 US 514, 33 L.Ed.2d 101, 92 S.Ct. 2183 (1972)
   Four part test by the Supreme Court on speedy trial.
   
   
2. Cowart v. Hargett, 16 F.3d 642 (5th Cir. 1994)
   Rights to speedy trial applies to states.
   
   
3. Dogget v. US, 505 US, 120 L.Ed.2d 520, 112 S.Ct. (1992)
   US v. Doggett, 906 F.2d 573 (11th Cir. 1990)
   Defendant need not show actual prejudice in order to prevail on constitution speedy trail claim, where first 3 BARKER (407 US 514) factors all weigh heavily against government. (Editor's Note: The lower court case went to the US Supreme Court where it was upheld).
   
   
4. Hakeem v. Beyer, 990 F.2d 750 (3rd Cir. 1993)
   

   1. At its core, Sixth Amendment guarantees of speedy trial shield individual from deprivation of personal Iiberty.
   2. Delay of 14 1/2 months between defendant's arrest and trial was sufficient to trigger further inquiry into Barker speedy trial factors.

   
   
5. Michel v. Louisiana, 350 U.S. 91
   Three Negroes were sentenced to death in Louisiana courts for aggravated rape. They challenged the composition of the grand jury which indicted them, charging that there was a systematic exclusion of Negroes from the panel. The state courts rejected this attack because it was not made before the expiration of the third judicial day following the end of the grand jury's term, as required by a Louisiana statute. In case No. 32 it appears that an attorney was appointed in open court on the day on which the grand jury's term ended, but that he did not consider himself appointed until he received official notice of his appointment; however, the state courts found that the appointment was made in open court. In case No. 36 it appears that one of the defendants (Poret) fled the state of Louisiana and was not returned to the state until it was too late for him to raise objections to the composition of the grand jury, and that during all of this time he was without counsel. Counsel for the other defendant (Labat) was appointed more than two months before the termination of the grand jury's term, but failed to make a timely challenge. The issue before the United States Supreme Court as to all the defendants was whether the Louisiana statute as applied violated the due process clause of the Fourteenth Amendment. The conviction of Labat should be vacated because he was jointly indicted with Poret by the same grand jury whose composition is challenged on constitutional grounds. Cf. Ashcraft v. Tennessee, 322 U.S. 143.
   
   
6. Redd v. Sowders, 809 F.2d 1266 (6th Cir. 1987)
   Held: a ten month delay was oppressive and constituted prejudice.
   
   
7. Ringstaff v. Howard, 861 F.2d 644 (11th Cir. 1988)
   A delay of 23 months between arrest and trial was presumptively prejudicial when the state caused most of the delay.
   
   
8. Snyder v. Donato, 211 Ariz. 117
   Accordingly, we accept jurisdiction and grant relief from the order designating this as a complex case. A "complex case" is a case so complicated, by virtue of its nature or because of the evidence required, that the ordinary limits for the time to trial are insufficient and must be extended so as to afford the party more time to prepare in order to fairly and fully present its case. Because this is not a "complex case," we grant relief from the court's order. Our holding, however, does not preclude the court from granting a continuance on the basis of another rule if it properly finds that the circumstances justify it.
   
   
9. US v. Aviles - Alvarez, 868 F.2d 1108 (9th Cir. 1989)
   Defense counsel who wishes to protect client's right to trial within 70 days should request that all pre-trial motions be completed, or that government be compelled to comply with discovery order, before statutory time for trial on issue of guilt has run its course.
   
   
10. US v. Bond, 956 F.2d 628 (6th Cir. 1992)
    Seventy day period for commencing trial under the Speedy Trial Act following vacation of defendant's guilty plea began running from date district court vacated the guilty plea.
    
    
11. US v. Butz, 982 F.2d 1378 (9th Cir. 1993)
    If several defendants are joined, 70 day limit in Speedy Trial Act is measured form the date on which last codefendant is arraigned.
    
    
12. US v. Crawford, 982 F.2d 199 (6th Cir. 1993)
    Speedy Trial Act requires that trial of criminal defendant commence within 70 days from date of arrest, filing of indictment or information, or first appearance before court, which ever date last occurs; if government falls to bring defendant to trial within 70 day period, government must dismiss indictment or information on motion of defendant.
    
    
13. US v. Hayes, 40 F.3d 362 (11th Cir. 1994)
    

    1. For speedy trial purposes, government has duty to make diligent. good faith effort to bring indicted defendant to trial promptly.
    2. For purposes of speedy trial claim, prejudice to defendant may be presumed in cases involving lengthy delay.

    
    
14. US v. Lindsey, 47 F.3d 440 (D.C. Cir. 1995)
    Any delay of one year or more in bringing a defendant to trial triggers scrutiny under the Sixth Amendment speedy trial provision.
    
    
15. US v. Neal, 27 F.3d 1035 (5th Cir. 1994)
    US v. Duranseau, 26 F.3d 804 (8th Cir. 1994)
    When Speedy Trial Act violation occurs, dismissal is mandatory on motion of the defendant.
    
    
16. US v. Sandoval, 990 F.2d 481 (9th Cir. 1993)
    "Accused" i.e., someone who has been either arrested or indicted, is prohibited from pre-trial delay not by the Fifth Amendment due process clause but by the more stringent requirements of the Sixth Amendment speedy trial right.
    
    Accused does not waive Sixth Amendment speedy trial right by failing to assert it.
    
    
17. US v. Theron, 782 F.2d 1510 (10th Cir. 1986)
    Due process required that incarcerated defendant be released on bond or tried within 30 days: defendant had been incarcerated 4 months, had taken no steps to delay trial, and government was ready for trial (delays were due to co defendant).
    
    
18. US v. White, 985 F.2d 271 (6th Cir. 1993)
    Speedy trail test under the Sixth Amendment requires courts to balance length of delay, reason for delay, whether and how defendant asserted speedy trial right, and amount of prejudice suffered by defendant.

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State / Federal Law

1. Abdul - Hakeem v. Koehler, 910 F.2d 66 (2nd Cir. 1990)
   A §1983 action is proper remedy for state prisoner who is making constitutional challenge to conditions of his prison life, but not to fact or length of his custody. i.e., when he is challenging conditions of his confinement (such an action requires exhaustion of state remedies).
   
   
2. Abramson v. Gonzalez, 949 F.2d 1567 (11th Cir. 1992)
   If statement may not be censored by the federal government it is also protected from censorship by the states.
   
   
3. Bell v. Stigers, 937 F.2d 1340 (8th Cir. 1991)
   Claim under §1983 must allege that conduct of defendant acting under color of state law deprived plaintiff of right, privilege, or immunity secured by constitution or laws of United States.
   
   
4. Blake v. Papadakos, 953 F.2d 68 (3rd Cir. 1992)
   Federal courts have no jurisdiction to review state officials compliance with state law.
   
   
5. Burk v. Beene, 948 F.2d 489 (8th Cir. 1991)
   State may waive its sovereign immunity and consent to suit in federal court.
   
   
6. 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 and that the judge had to give the requested instruction/admonition.
   
   
7. K - S Pharmacies v. American Home Products, 962 F.2d 728 (7th Cir. 1992)
   Federal court may interpret state law (Authors note: in other words federal law takes precedent over state law).
   
   
8. Kellas v. Lane, 923 F.2d 492 (7th Cir. 1990)
   While §1983 confers no substantive federal rights, it is designed to remedy deprivations of federal rights by state actor.
   
   
9. Mackenzie v. City Of Rockledge, 920 F.2d 1554 (11th Cir. 1991)
   Unequal application of state law may violate equal protection clause.
   
   
10. Mannhalt v. Reed, 847 F.2d 576 (9th Cir. 1988)
    To prevail on claim for habeas corpus, state prisoner must show that his detention violates the Constitution. a federal statute. or a treaty.
    
    
11. Noble v. White, 996 F.2d 797 (5th Cir. 1993)
    Federal courts may, under limited circumstances, exercise jurisdiction over state law claims.
    
    
12. Note: State prisoners now serving a federal consecutive sentence may receive 'credit on their federal sentence for the entire time spent in a state institution. Simply put, a state prisoner who first serves a state sentence followed by a consecutive federal sentence can have them credited in such a way that the federal sentence will be run concurrent with the state sentence. See Barden v. Keohane, 921 F.2d 476.
    
    
13. O'Bar v. Pinion, 953 F.2d 74 (4th Cir. 1991)
    If a term of imprisonment can be shortened or modified by rights conveyed under state law, those rights cannot be denied without due process.
    
    
14. Orozco v. US I.N.S., 911 F.2d 539 (1Ith Cir. 1990)
    Filing of "detainer" is informal process advising prison officials that prisoner is wanted on other pending charges and requesting notification prior to prisoner's release.
    
    
15. Pearson v. Norris, 52 F.3d 740 (8th Cir. 1995)
    If direct appeal or another avenue of collateral attack is created by state, it must conform to due process standards.
    
    
16. Qyzel v. Marks, 6 F.3d 116 (3rd Cir. 1993)
    The Fourteenth Amendment directs that all persons similarly situated be treated alike.
    
    
17. US v. Alaska Public Utilities Comm., 23 F.3d 257 (9th Cir. 1994)
    Supremacy clause establishes federal law as the supreme law of the land.
    
    
18. US v. Cephas, 937 F.2d 816 (2nd Cir. 1991)
    Government cannot launch detainer against defendant and then throw out the clock every time it dismisses charges, only to start clock anew by bringing new set of charges.
    
    
19. US v. Marvro, 436 US 340. 56 L.Ed.2d 329. 98 S.Ct. 1934 (1978)
    US v. Reed, 910 F.2d 621 (9th Cir. 1990)
    Prosecutions jurisdiction's failure to bring prisoner to trial within 180 days after prisoner requests speedy trail under Interstate Agreement on Detainers Act required dismissal of indictment.
    
    
20. US v. Union Gas Co., 792 F.2d 372 (3rd Cir. 1986)
    States immunity may be avoided in only two ways. Congress may abrogate it by providing through statute for suits against state. or states can waive their sovereign immunity and consent to be sued.
    
    
21. Williamson v. Jones, 936 F.2d 1000 (1991)
    State court's interpretation of state law is binding upon federal court in habeas corpus proceeding.

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State Procedural Bar

1. Coleman v. Thompson, 501 US 722, 750 (1991)
   The requirement of an independent and adequate state procedural rule is a strict one: federal courts on habeas corpus review of state prisoner claim... will presumed that there is no independent and adequate state ground for a state court decision when... the adequacy and independence of any possible state law ground is not clear from the face of the opinion. Id at 734-735.
   
   
2. Davis v. Wechseler, 263 US 22, 23 (1923)
   The assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.
   
   
3. Gretzler v. Stewart, (1996)
   State v. Durgin, 517 P.2d 1246, 1249 (Ariz. 1974)
   State v. Neal, 692 P.2d 272, 280 (Ariz. 1984)
   At the time of Gretzler's trial, evidence of intoxication whether induced by alcohol or drugs, was admissible to show lack of specific intent to commit to crime charged.
   
   
4. Lambright v. Stewart, 191 F.3d 1181, 1185 (9th Cir. 1999)
   All sentencing errors are treated as implicitly raised, removing the bar of procedural default.
   
   
5. Michael v. Louisiana, 350 US 91, 93-94 (1955)
   In a criminal case, the test for whether a state procedural rule constitutes an inseparable barrier to the assertion of a federal right is whether the defendant has had a reasonable opportunity to have the issue as to the claimed right heard and determined by the state court.
   
   
6. Michel v. Louisiana, 350 US 91, 93-94 (1955)
   English, 146 F.3d at 1260-64
   State statute that is unreasonably restrictive on exercise of the federally protected constitutional right to counsel and therefore is inadequate to bar federal review.
   
   
7. Staub v. City of Blakely, 355 US 313,325 (1958)
   The court has held that if a state procedural rule frustrates the exercise of a federal right, that rule is inadequate to preclude federal courts from reviewing the merits of the federal claims. Holding that denial of petitioners constitutional claims for failure to attack specific sections of the challenged ordinance was inadequate state law grounds. The inadequate state grounds doctrine is rooted in a concern that a state's rigid hearings to technical requirements of dubious validity may result in fundamental unfairness or federal rights are at stake.
   
   
8. Wager v. Pro, 603 F.2d 1005, 195 US App. D.C. 423 (1979)
   "Intent", as is used in international torts, has been defined as the desire to bring about a result that will invade the interests of another. W. Prosser, Law of Torts s 8, and 31 (1971). In contrast gross negligence implies an "extreme departure from the ordinary standard of care. Id at 184.
   
   
9. Wainwright v. Sykes, 433 US 72, 81 (1977)
   When a state court litigants raises a federal claims in a manner that does not comply with a state procedural rule, the state court may dismiss that claim as defaulted. So long as the dismissed relies on a state law ground that is independent of the federal question and adequate to support the judgment, it will be insulated from federal review.

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Structural Error

1. Arizona v. Fulminante, 499 US 279, 308-09 (1991)
   Trial error which occurred during the presentation of case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt. Id. at 307-08. In contrast structural defects affect the framework within the trial proceeds and involve the basic protections, without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair. Id. at 307-09.
   
   
2. Hoffman v. Arave, 236 F.3d 523, 5 40-41 (9th Cir. 2001)
   Although defendant was denied right to counsel during pre-sentence interview a critical stage of proceedings, error is subject to harmless error review.
   
   
3. Rose v. Clark, 478 US 570, 5 77-78 (1986)
   Neder v. US, 527 US 1, 8-9) 1999)
   When structural error occurs, we automatically reversed the judgment. Id. at 552, TT 45, 65 P3d at 933. No consideration is given to factual setting and whether the error may or may not be harmless. Structural error requires reversal.
   
   
4. Rose v. Clark, 478 US 570, 5 77-78 (1986)
   Powell v. Galaza, 282 F.3d 1089, 1096 (9th Cir. 2002)
   Improper to apply harmless error analysis or structural errors rendered trial fundamentally unfair, vacated on other grounds by 123 S.Ct. 362 (2002)
   
   
5. State v. Garcia-Contreras, 191 Ariz. 144, 953 P.2d 536
   Defendant was convicted by jury upon re-trial 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
   
   
6. State v. Henderson, 133 Ariz. 259, 650 P.2d 1241 (Ariz. App. 1982)
   As our Supreme Court explained in State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003) (Ring 3) structural errors deprive defendants of basic protections, without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence... And no criminal punishment may be regarded as fundamentally fair. Id. at 552, TT 45, 65 P.3d at 933.
   
   
7. US v. Annigoni, 96 F.3d 1132, 1143 (9th Cir. 1996) (en Banc)
   There is not a rigid dichotomy between trial errors and structural error. The court's opinion in Fulminante does not mean that any violation of the same constitutional right is a structural defect regardless of whether the error is significant or trivial. To determine if a particular error is structural, courts must look not only at the right violated but also at the particular nature, context and significance of the violation.

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Summary Judgment

1. Adickes v. Kress & Co., 398 US 144, 26 L.Ed.2d 142, 90 S.Ct. 1598 (1970)
   Latrieste Restaurant And Cabaret Inc. v. Village Of Port Chester, 40 F.3d 587 (2nd Cir. 1994)
   Gallo v. Prudential Residential Services, 22 F.3d 1219 (2nd Cir. 1994)
   

   1. On motion for summary judgment, court is required to resolve all ambiguities and draw all factual inferences in favor of party against whom summary judgment is sought.
   2. On summary judgment, all facts and inferences therefrom are to be construed in favor of party opposing motion.

   
   
2. Allen v. Wright, 468 US 737, 82 L.Ed.2d 556, 104 S.Ct. 3315 (1984)
   "Standing" is granted if "The person seeking redress has suffered, or is threatened with, some 'distinct and palpable injury' the 'personal stake requirement is satisfied ... and, if there is some casual connection between the asserted injury and the conduct being challenged."
   
   
3. City Management Corp. Vs. US Chemical Co. Inc., 43 F.3d 244 (6th Cir. 1994)
   Role of judge at summary judgment stage is not to weight evidence, but to determine whether there is genuine issue of material fact.
   
   
4. Cooper v. Pate, 378 US 546, 12 L.Ed.2d 1030, 84 S.Ct. 1733 (1964)
   Cramer v. Skinner, 931 F.2d 1020 (5th Cir. 1991)
   Hamm v. Groose, 15 F.3d 110 (8th Cir. 1994)
   Court must accept allegations in pleadings as true.
   
   
5. Haines v. Kerner, 404 US 519, 30 L.Ed.2d 652, 92 S.Ct.594 (1972)
   Duke v. Cleland, 5 F.3d 1399 (11th Cir. 1993)
   Complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
   
   
6. Fallen v. US, 378 US 139, 12 L.Ed.2d 760, 84 S.Ct. 1689 (1964)
   Hibernia Nat. Bank v. Adm. Cen. Soc. Anonima., 776 F.2d 1277 (5th Cir 1985)
   Because the plaintiff did all that could be reasonable expected the motion to dismiss was denied.
   
   
7. Harris Truck Lines Vs. Cherry Meat Packers, 371 US 215, 9 L.Ed.2d 261, 83 S.Ct. 383 (1962)
   Thompson v. I.N.S., 375 US 374, 11 L.Ed.2d 404, 74 S.Ct. 397 (1967)
   These cases have the criteria for "Excusable Neglect" and "Unique Circumstances."
   
   
8. Ingram v. Becher, 3 F.3d 1050 (7th Cir. 1993)
   Trial court ordinarily should permit litigant, especially pro se litigant, opportunity to amend complaint before dismissing complaint for failure to state a claim.
   
   
9. Johnson v. US Dept. Of Treasury, 939 F.2d 820 (9th Cir. 1991)
   Dismissal is harsh penalty, and should be imposed only in extreme circumstances.
10. Justice v. US, 6 F.3d 1474 (11th Cir. 1993)
    Dismissal with prejudice is a sanction of last resort proper only where there is a clear record of delay or willful contempt.
11. Keywell Corp. v. Weinstein, 33 F.3d 159 (2nd Cir. 1994)
    Party seeking summary judgments bear burden of demonstrating absence of any genuine factual dispute.
    
    
12. Montalbano v. Easco Hand Tools Inc., 766 F.2d 737 (2nd Cir. 1985)
    Nikwei v. Ross School Of Aviation, Inc., 822 F.2d 939 (10th Cir. 1987)
    

    1. Ordinarily, insufficient service of process will be squashed and the action preserved, where there is a reasonable prospect that plaintiff ultimately will be able to serve defendant properly, Rule 4(c)(2)(C)(ii) SERVICE BY MAIL.
    2. Where defendant attempts to hide, thereby making service by mail nearly impossible, service is perfected and court has jurisdiction

    
    
13. Moses Cone Hosp. v. Mercury Const., 460 US 1, 74 L.Ed.2d 765, 103 S.Ct. 927 (1983)
    Sudeikis v. Chicago Transit Authority, 774 F.2d 766 (7th Cir. 1985)
    Fact that a state lawsuit on an issue is pending is not generally a bar to federal suit on same issue.
    
    
14. Tolentino v. Friedman, 46 F.3d 645 (7th Cir. 1995)
    Summary judgment is not granted unless there are not triable issues.
    
    
15. US v. Chamberlin, 139 F.Supp. 2d 637)
    Minors and their parents sued photographer who took nude pictures of minors for violation of Protection of Children Against Sexual Exploitation Act, infliction of emotional distress, invasion of privacy, and negligent supervision. On photographer's motion for summary judgment, the District Court, Caputo, J., held that: (1) some photographs did not contain exhibition of minors' genitals as required to establish violation of Act; (2) other photographs which did exhibit genitals were not lascivious; (3) affidavits describing photographs not in record did not establish lasciviousness; and (4) there was no affirmative reason to retain jurisdiction over state-law claims. Summary judgment granted in part, and claims dismissed in part.
    
    
16. US v. Koreh, 59 F.3d 431 (3rd Cir. 1995)
    At summary judgment stage, court must give benefit of all inferences to nonmoving party.

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