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United States v. Hall,
No. 05-1205 (10th Cir., January 23, 2007) (Published): Severance; Sufficiency of the Evidence: Large-scale drug conspiracy conviction. Hall raised several issues: 1) failure to suppress wiretap evidence based on inaccurate/misleading statements in the application; 2) failure to sever the trials; 3) error in the admission of co-conspirator statements; 4) denial of new trial based on juror misconduct (overhearing defense counsel discuss the case and telling other jurors about it); 5) variance in the conspiracy count; 6) prosecutorial misconduct; 7) sufficiency of the evidence of the possession count (this was a winner on appeal); and 8) various sentencing issues. The panel reversed the possession count based on insufficient evidence and remanded for re-sentencing because the District Court did not explain sufficiently its deviation from the Guidelines calculation.
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United States v. Burkley,
No. 07-6000 (10th Cir., January 15, 2008) (Published): 1. Searches and Seizures; Traffic Stops; 2. Severance: Burkley was convicted at jury trial in the Western District of Oklahoma of Possessing Marijuana w/Intent to Distribute, Carrying a Firearm During and in Relation to a Drug Trafficking Crime, and Being an Unlawful User of Marijuana in Possession of Firearms and Ammunition. He was sentenced to 120 months. His initial arrest stemmed from a traffic stop (failure to signal). The officer noticed a strong odor of marijuana emanating from the car and Burkley admitted that he had no driver's license. Burkley argued a suppression issue that under state law, traffic must be affected by the failure to use the turn signal; and that the municipal ordinance was inconsistent with state law. The panel refused to certify the question to the Oklahoma courts and held that the District Court did not err in concluding that Burkley violated state law. The panel also found no error in the District Court's refusal to sever count one from the other counts, sufficiency of the evidence claims, and in the order of forfeiture. AFFIRMED.
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United States v. Rojas,
No. 07-8060 (10th Cir., July 8, 2008) (Published): Federal Sentencing Guidelines; Double Counting: Rojas plead guilty to use of firearm during a drug trafficking offense and interstate transport of stolen property. He appealed the sentence primarily upon the interesting-looking argument that the District Court double-counted the firearm conduct by adding a level for taking the gun during the crime and also possessing it. The panel rejected this argument and AFFIRMED, although there is a good discussion of the proper analysis of double-counting arguments.
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United States v. Zapata,
No. 06-1541 (10th Cir., September 9, 2008) (Published): 1. Wiretaps; 2. Severance: 18 members of the Zapata family and/or their close friends were involved in a cocaine trafficking conspiracy. Five of them decided to take their chances at trial and were convicted, receiving lengthy prison terms. In this opinion, the convictions and sentences are AFFIRMED over claims relating to the sufficiency of wiretaps, sufficiency of the evidence, jury instructions that would have allowed the jury to convict based on conduct of co-defendants rather themselves, and denial of severance.
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