United States v Francis

Francis appealed his firearms convictions and sentence. The panel affirmed the convictions and reversed and remanded for resentencing. It held that the evidence was sufficient to prove that Francis knew or had reasonable cause to believe a confidential informant that he purchased firearms for was in fact a felon as an ATF agent testified the informant had a felony conviction and there was no objection to that testimony. It held the district court improperly applied an enhancement for trafficking as the district court applied the correct standard, but, there was insufficient evidence that Francis knew or should have known the ion format was part of the narrow group of people ineligible due to a crime of violence conviction and the government cannot simply rely of statistical possibilities to prove the enhancement. It finally upheld a sex offender treatment condition of supervised release under plain error even though district court failed to give a generalized statement justifying the condition because Francis’ substantial rights were not affected given the basis in the record to impose the condition namely Francis’ sex offense conviction, his failure to complete treatment and a credible accusation of additional child sex abuse.

United States v Tapaha

Tapaha appealed her assault conviction. The panel affirmed. It held there was no violation of Tapaha’s right to present a defense in excluding certain testimony about her boyfriend’s abusive behavior and beliefs about the incident in question because some of the statements were speculative and the other testimony would not have proven her self-defense claim as it was cumulative to evidence about the incident here and the three acts of valance by boyfriend towards Tapaha and the self-defense claim was weak as boyfriend was unarmed and walking away when Tapaha struck him with her car. It held there was no confrontation clause violation concerning boyfriend as he was Tapaha’s witness and she had no right to cross-examine him. It finally held there was no error in admitting redacted statements by Tapaha to police because there was no charge of recent fabrication of the abuse allegations and the excised portions were consistent with the officer’s testimony about Tapaha’s statements about the day in question.

United States v Miller

Miller appealed his drug and false statement convictions and sentence. The panel affirmed in part and vacated in part. It held there was no requirement that the government’s expert witness delineate where he thought medical malpractice ended and criminal conduct began and thus the expert testimony was properly admitted, any duplicity error here was cured by the jury instruction that the jurors must unanimously agree as to each controlled substance allegedly prescribed illegally, held the false statement conviction had to be vacated as a constructive amendment occurred during trial allowing conviction for false statements not alleged in the indictment, the evidence was no overwhelming and allowing retrial here on the different false statement alleged would allow a charge after the running of the limitations period, held that the statement alleged in the indictment about a suspended medical license was false as a matter of law as the suspension at issue was vacated due to compliance with an underlying order, vacation of a suspension does not mean the suspension was nullified and the director of Colorado’s medical board testified vacation did mean the suspension never happened and using this definition effectuates the board’s charge to protect the public, and allowed Miller to raise his mens rea defense at retrial. It dismissed the challenge to the sentence as moot because Miller has served his time and been released.