Case Summaries and Commentary by Federal Defenders of the Tenth Circuit

U.S. v. Fisher, 2015 WL 6904843 (11/10/2015) (KS): Fisher said that the district court did not rule on whether the government breached the plea agreement. The panel finds this issue is moot because he already received all the relief he requested for that alleged breach.

Fisher’s second issue was whether the district court violated Rule 32 by not ruling on his vindictive prosecution claim. The panel finds he waived this issue because he did not raise it thoroughly in his brief. Only by cobbling together sentences here and there in his brief could one even say that he questioned the district court’s ruling. The panel says that isn’t enough to meet the requirements of 10th Circuit Rule 28(a)(8).

A cautionary aside: the panel writes that it was Fisher’s burden to tell the district court it wasn’t following Rule 32. Since he did not then it was his “burden to argue in his opening brief that the district court committed plain error.” I would note that in Zander, 794 F.3d at 1232, n. 5 the court ruled that the defense had adequately addressed the plain error issue in his reply brief. If one can articulate a standard of review in the opening brief, one may be safe in waiting until the reply to discuss plain error.