d Article 36 of the Vienna Convention on Consular Relations, it was harmless error in light of the overwhelming evidence of defendant's guilt and his failure to seek notification 5 months prior to trial.US v. BALTAS (1st Cir 01/02/01 - No. 99-1547) Government agents' failure to minimize electronic surveillance of material beyond the scope of the warrant does not require suppression of all intercepted communications.US v. UKOMADU (6th Cir 01/05/01 - No. 99-1809) Government agents' reasonable belief that destruction of drugs was imminent justified a warrantless search where agents had reason to know that multiple people were in residence with suspect package that customs and drug officials had modified.US v. ORTIZ (8th Cir 01/03/01 - No. 00-2297, 00-2330) Apprendi does not require submission of drug quantity to jury where the factual determination on drug quantity did not increase defendant's maximum sentence beyond the statutory range authorized by the jury's verdict under the statute, 21 USC 841(b)(1)(C).US v. MOORE(1st Cir 12/29/00 - No. 00-1174)Officers who were justified in making investigatory stop of defendant in high crime area may also require a suspect to reveal object he is hiding in his hand, which was obscured from officers' view.In Depth FeaturesRobert Jay Lifton and Greg Mitchell, authors of "Who Owns Death?

Roberts v. Rhode Island (1st Cir ) Rhode Island Department of Corrections policies providing that all males committed to the state prison be subject to a strip search and a visual body cavity search are unreasonable and therefore unconstitutional. US v. Zaccaria (1st Cir) A witness' failure to defend his evidence after being given Miranda warnings cannot be used later in the trial of a confederate to impeach his testimony that he was an innocent dupe, absent special circumstances exist in a given case that materially shift the balance in favor of US v. Cruz (2nd Cir) Defendant's convictions for drug distribution under 21 USC 841(a) violate the Double Jeopardy Clause of the Fifth Amendment since they are lesser included offenses of convictions for drug distribution within 1000 feet of a school under 21 USC 860. District court has discretion to depart from USSG 5G1.2's "stacking" provisions.

At the same time, it acknowledges Pautler's character and motive.SUPREME COURTUnited States v. Cotton etal., --- US --- (5/20/2002) Failure to object may waive putative "Apprendi" error.A federal grand jury returned an indictment charging respondents with conspiracy to distribute and to possess with intent to distribute a detectable amount of cocaine and cocaine base. Respondents were convicted and received a sentence based on the District Courts finding of drug quantityat least 50 grams of cocaine basethat implicated the enhanced penalties of 21 U.S.C. 841(b). They did not object in the District Court to the fact that the sentences were based on a quantity not alleged in the indictment.

See United States v. Allen, 247 F.3d 741, 759-60 (8th Cir. 2001) (relaxed evidentiary standard works to defendant’s advantage in helping to prove mitigating factors and to disprove aggravating factors, rejecting facial challenge to FDPA’s relaxed evidentiary standard), vacated by 122 S. Ct. 2653 (2002). Courts are able to try and sentence 21 U.S.C. § 841 offenders without offending the Constitution because the statute’s silence is not inconsistent with treating drug type and quantity as an element to be tried and proven to a jury beyond a reasonable doubt and on the basis of admissible evidence. See United States v. McAllister, 272 F.3d 228, 233 (4th Cir. 2001).

U.S. v. McGehee, 2006 WL 1149477 (5/2/06) - The 20 year mandatory minimum under 21 U.S.C. § 841(b)(1)(A) for multiple felony drug offenses is applicable to a Texas conviction for failure to pay tax for marijuana. The power to tax is the power to destroy.

U.S. v. Huskey, --- F.3d ----, 2007 WL 2702447 (10th Cir. Sept. 18, 2007)Defendant, who pleaded guilty to 2 counts of trafficking over 50 grams of meth and was sentenced to 2 consecutive life terms under 21 U.S.C. § 841(b)(1)(A), challenged his sentence on 3 grounds: one of his priors should not have been counted as a previous drug felony; mandatory minimum sentences conflict with the statutory command to trial judges to consider the factors set out in 18 U.S.C. § 3553(a) in arriving at their sentencing decisions; and the sentence is cruel and unusual punishment in violation of the 8th Amendment.1. Not plain error to determine Defendant’s prior Kansas attempted cocaine possession is a countable prior drug conviction even though the attempt statute was general and applied to any felony offense and not just drug offenses.

Defendant appealed (1) his motion to suppress inculpatory statements he made to Federal Bureau of Investigation (FBI) agents, (2) his motion to dismiss the indictment based on the government's deportation of a material witness, and (3) his motion for a mistrial based on prosecutorial misconduct during the rebuttal portion of the government's closing argument. The government cross-appealed his sentence, contending he should have received a 20-year sentence under 21 U.S.C. § 841(b)(1)(A). The COA affirmed.

More below. (Five concurring opinions and a dissent)Burgess v. US, No. 06-11429 (4/16/2008) A state drug offense punishable by more than one year qualifies as a "felony drug offense," even if state law classifies the offense as a misdemeanor under Controlled Substances Act's (CSA), 21 U.S.C. section 841(b)(1)(A).Begay v. US, No. 06-11543 (4/16/2008) Driving under the influence of alcohol (DUI) is not a "violent felony" for purposes of the Armed Career Criminal Act (ACCA).

if documents acceptable under Shepard were consulted as to whether the defendant was found guilty of the requisite elements, where the PSR only quoted from a "PSR" (?) from a prior deportation proceeding.U.S. v. Clarkson, 2008 WL 2217257 (5/29/08) (unpub'd) - The government failed to present sufficient proof the defendant possessed stolen mail where the storage unit in which the stolen mail was found was rented to the co-defendant, and the co-defendant listed the defendant as having authority to use the unit, but there was no evidence the co-defendant ever gave the defendant the access code and key.Mendiola v. Mukasey, 2008 WL 2222018 (5/30/08) (unpub'd) - The defendant's possession-of-a-controlled-substance offense was an aggravated felony, despite Lopez v. Gonzales, 549 U.S. 47 (2006), because the alien had previously been convicted of a controlled substance offense and a second controlled substance conviction would have subjected the alien to a felony punishment under federal law, 21 U.S.C. § 841(a). So, without saying so, the 10th essentially applied the recent Rodriquez rationale in the immigration context. U.S. v. Merino-Garcia, 2008 WL 2175338 (5/27/08) (unpub'd) - Hopefully just a careless statement in a non-precedential decision by Judge McWilliams, and not a reasoned opinion about the impact of Gall and Kimbrough, but the 10th says the Guidelines' assertion that family ties and responsibilities are ordinarily not relevant applies to variances as well as departures.U.S. v. Pena, 2008 WL 2175356 (5/27/08) (unpub'd) - The defendant did not express his desire to represent himself explicitly enough when he said: "can I represent myself?"

We talk a lot about appellate issues and whether they should be raised. Of course in the military we have After a jury trial, Jeffery Carter was convicted of distributing crack, see 21 U.S.C. § 841(a)(1), and the district court sentenced him to 180 months in prison. Carter filed a notice of appeal, but his appointed counsel now seeks to withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot discern a nonfrivolous basis for appeal.