Thought For The Day:

“The life of the law has not been logic; it has been experience.”-  Oliver Wendell Holmes
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  • Criminal Defense
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Practice Areas

Eighth Circuit Affirms District Court’s Jury Instruction

Jury instructions in a criminal trial can snatch defeat from the jaws of acquittal (and vice versa). In United States v. Mariano, issued on September 9, 2013, the Eighth Circuit reaffirmed prior precedents that “a defendant who requests and receives a jury instruction may not challenge the giving of that instruction on appeal.” By […]

By |October 14th, 2013|Blog|Comments Off|

Eighth Circuit Affirms 188-Month Sentence Over Strong Dissent from Judge Bright

It is one of the basic rules of criminal defense – know the “worth” of your case and know it early. The worth of a case is a complex, variable and subjective calculation – encompassing, among other things, the statutory and guideline sentencing exposure, the case’s trial prospects, the plea bargaining practices of the […]

By |October 14th, 2013|Blog|Comments Off|

Eighth Circuit Affirms Use of Plea Stipulation at Trial

Most federal cases end in a guilty plea (about 97%) and most of those involve plea agreements – a reflection of what has been described as the prosecutor’s “awesome” bargaining power. In fact, as the Supreme Court acknowledged in Frye v. Lafler, “longer sentences exist on the books largely for bargaining purposes.” How stringently […]

By |October 14th, 2013|Blog|Comments Off|

Eighth Circuit Confirms Safety Valve Relief Available After Trial

Among the many proposals currently being advanced to reduce our shameful mass incarceration is the expansion or duplication of the “safety valve” under 18 U.S.C. § 3553(f). This provision grants first-time, low-level, non-violent drug offenders a path to avoid heavy mandatory minimum penalties. They must meet certain criteria: only one criminal history point, no […]

By |October 14th, 2013|Blog|Comments Off|

Eighth Circuit Rejects Unsubstantiated Challenge to Government Translation

Criminal defense lawyers are forced to rely as much on instinct as information. Clients may genuinely not know the facts or refuse to share them. Criminal discovery, despite the stakes in criminal cases, is a shadow of its civil counterpart. Prosecutors, more often than not, “play things close to the vest,” to quote a […]

By |October 14th, 2013|Blog|Comments Off|

Eighth Circuit Hints It Might Entertain Expanded Scope of Rule 17(c)

It is one of the great ironies of the law that in criminal cases, where the stakes are the highest, defendants have less discovery rights than in civil cases, and far less than those prosecuting them. One discovery mechanism available to a defendant is Fed.R.Crim.P. 17(c)(1), which allows the criminal defendant, with the permission […]

By |October 14th, 2013|Blog|Comments Off|

Eighth Circuit Reverses SORNA Conviction of Defendant Who Moved Abroad

The highly technical SORNA statute – a dubious component in efforts to prevent sexual violence – continues to accrue appellate drubbings. In United States v. Lunsford, issued on August 5, 2013, the Eighth Circuit held that an individual subject to sex offender registration is not required under SORNA to notify the registry of a […]

By |October 14th, 2013|Blog|Comments Off|

Eighth Circuit Remands for Explanation of Probationary Sentence

A downward variance to probation from a guideline range of 135 to 168 months in a  $33M fraud case has precipitated a remand for a fuller explanation in United States v. Cole, issued on August 6, 2013.   The government had appealed the sentence as substantively unreasonable, but the Eighth Circuit did not reach that […]

By |August 12th, 2013|Blog|Comments Off|

Eighth Circuit Affirms Habeas Denial Despite Perjured Testimony

What standard should govern the analysis in a habeas proceeding of the government’s knowing or reckless presentation of perjured testimony at a trial? Is it, as the Ninth Circuit has held, simply a materiality determination (using the lower materiality standard for perjury) or is it a two-step process requiring both a materiality determination, followed […]

By |August 12th, 2013|Blog|Comments Off|

Eighth Circuit Affirms Conviction in “Razor-thin” Case

Defense counsel’s failure to move for judgment of acquittal at the close of the government’s case, at the close of all evidence, or after the jury’s verdict, despite “razor-thin” evidence of guilt, resulted in a defendant forfeiting that argument, and resorting to the steep standard of “plain error” review on appeal, in United States […]

By |August 12th, 2013|Blog|Comments Off|