Tenth Circuit Breviaries

VICAR sufficiency

In United States v. Cordova, the Tenth Circuit found sufficient evidence to sustain Mr. Cordova's conviction for committing a violent crime (murder) in aid of racketeering activity. Circumstantial evidence supported the jury's finding (1) of an agreement between Mr. Cordova and a gang member that Mr. Cordova would murder the victim in exchange for money and drugs, and (2) that the gang member made the agreement on behalf of the gang (and not just to satisfy the gang member's personal vendetta). It didn't matter that personal reasons may have also influenced the gang member.

Unintelligible recordings

In Cordova, the Tenth Circuit also found no error in the district court's admission of a mostly unintelligible recording of a conversation between a cooperating witness and the gang member. The recording's admission was appropriate since the gang member himself was available to testify (and be cross-examined) about it, as was the agent who debriefed the gang member right after the conversation was recorded. And even even if admission of the recording was error, it was harmless error).

Brady/Giglio/Rule 16

Also in Cordova, the Tenth Circuit rejected Mr. Cordova's claim that the district court should have granted a new trial on grounds that the government failed to disclose, before trial, evidence that it presented at trial (an agent's impressions of Mr. Cordova during an interview with him). The Tenth Circuit concluded that, regardless of whether the evidence was exculpatory, the evidence was not material.

Newly discovered evidence

Finally in Cordova, the Tenth Circuit rejected Mr. Cordova's claim that the district court should have granted a new trial based on the gang member's post-trial statement that "he never asked" Mr. Cordova to murder the victim. The Tenth Circuit cited the government's substantial circumstantial evidence demonstrating an agreement and the gang member's other inculpatory statements. And the Tenth Circuit warned (as it has before) that "generally, motions for a new trial based on newly discovered evidence are disfavored and granted 'only with great caution.'"

Deadlines, deadlines, deadlines

1. Where the district court sentences the defendant, but defers restitution, the defendant may wait until after restitution is ordered before filing a notice of appeal. The defendant may also file separate notices of appeal--one after sentencing, and one after restitution, and then either litigate those appeals separately or move to consolidate them. What the defendant may not do is rely on the notice filed after sentencing to appeal the later restitution judgment.

2. "[A] remand for resentencing delays finality [for 2255 statute-of-limitations purposes] until the defendant is resentenced and direct review of the new sentence is complete." (But watch out for "purely ministerial" remands.)

3. "If any part of the sentence—including restitution—has not been finalized, then the judgment of conviction is not final." In other words, a remand for recalculation of restitution will, just like any other resentencing remand, also delay finality for 2255 statute-of-limitations purposes until the defendant's restitution is recalculated and direct review of the new sentence (the new restitution amount) is complete.

So explained the Tenth Circuit in United States v. Anthony, finding Mr. Anthony's 2255 petition timely.