United States v. Spagnuolo, supra (dissent notes that ‘‘under the prosecution’s own ad- mission, it did not intend to produce at trial the wit- nesses called at the pre-trial suppression hearing’’). Moreover, even if that person did testify at the trial, if that testimony went to a different subject matter, then under rule 26.2(c) only portions of prior statements cov- ering the same subject matter need be produced, and thus portions which might contradict the suppression hearing testimony would not be revealed. Thus, while it may be true, as declared in United States v. Montos, supra, that ‘‘due process does not require premature production at pre-trial hearings on motions to suppress of statements ultimately subject to discovery under the Jencks Act,’’ the fact of the matter is that those statements—or, the essential portions thereof—are not necessarily subject to later discovery.
United States v. Hall, supra, 152 F.3d at 398 (noting that sealing of record, although not constitutionally required, ‘‘likely advances inter- ests of judicial economy by avoiding litigation over [derivative use issue]’’). Except as provided in Rule 12.2(c)(3), the rule does not address the time for disclosing results and reports of any expert examination conducted by the defendant. New Rule 12.2(c)(3) provides that upon disclosure under subdivision (c)(2) of the results and reports of the gov- ernment’s examination, disclosure of the results and reports of the defendant’s expert examination is man- datory, if the defendant intends to introduce expert evidence relating to the examination. Rule 12.2(c), as previously written, restricted admissi- bility of the defendant’s statements during the course Rule 12.3 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Page 72 of an examination conducted under the rule to an issue respecting mental condition on which the defendant ‘‘has introduced testimony’’—expert or otherwise. As amended, Rule 12.2(c)(4) provides that the admissibility of such evidence in a capital sentencing proceeding is triggered only by the defendant’s introduction of ex- pert evidence. The Committee believed that, in this context, it was appropriate to limit the government’s ability to use the results of its expert mental examina- tion to instances in which the defendant has first intro- duced expert evidence on the issue. Rule 12.2(d) has been amended to extend sanctions for failure to comply with the rule to the penalty phase of a capital case. The selection of an appropriate remedy for the failure of a defendant to provide notice or sub- mit to an examination under subdivisions (b) and (c) is entrusted to the discretion of the court. While subdivi- sion (d) recognizes that the court may exclude the evi- dence of the defendant’s own expert in such a situation, the court should also consider ‘‘the effectiveness of less severe sanctions, the impact of preclusion on the evi- dence at trial and the outcome of the case, the extent of prosecutorial surprise or prejudice, and whether the violation was willful.’’ Taylor v. Illinois, 484 U.S. 400, 414 n.19 (1988) (citing Fendler v. Goldsmith, 728 F.2d 1181 (9th Cir. 1983)). COMMITTEE NOTES ON RULES—2005 AMENDMENT The amendment to Rule 12.2(d) fills a gap created in the 2002 amendments to the rule. The substantively amended rule that took effect December 1, 2002, permits a sanction of exclusion of ‘‘any expert evidence’’...
United States v. Oregon FRAMEWORK 10
United States v. Oregon Harvest Sharing Principle 55 3. Responsibilities for Costs 55 4. Escapement Objectives 56 5. Fisheries Management 56 X. XXXXX XXXXXXXX 57 1. Management Goals 57 2. Management Measures 58 H. SHAD 59 I. WALLEYE AND OTHER NON-NATIVE SPECIES 60 X. XXXXXXX 60 K. RESEARCH AND MONITORING 61 1. Current Needs 62 2. Additional Needs 62
United States v. Karo, supra (al- though no probable cause was required to install beep- er, officers’ monitoring of its location in defendant’s home raised Fourth Amendment concerns). Nonethe- less, there is no procedural guidance in current Rule 41 for those judicial officers who are asked to issue track- ing device warrants. As with traditional search war- rants for persons or property, tracking device warrants may implicate law enforcement interests in multiple districts. The amendment provides that a magistrate judge may issue a warrant, if he or she has the authority to do so in the district, to install and use a tracking de- vice, as that term is defined in 18 U.S.C. § 3117(b). The magistrate judge’s authority under this rule includes the authority to permit entry into an area where there is a reasonable expectation of privacy, installation of the tracking device, and maintenance and removal of the device. The Committee did not intend by this amendment to expand or contract the definition of what might constitute a tracking device. The amend- ment is based on the understanding that the device will assist officers only in tracking the movements of a per- son or property. The warrant may authorize officers to track the person or property within the district of issu- ance, or outside the district. Because the authorized tracking may involve more than one district or state, the Committee believes that only federal judicial officers should be authorized to issue this type of warrant. Even where officers have no reason to believe initially that a person or property will move outside the district of issuance, issuing a warrant to authorize tracking both inside and outside the district avoids the necessity of obtaining multiple warrants if the property or person later crosses district or state lines. The amendment reflects the view that if the officers
United States v. Alcea Band of Tillamooks et al., and Tee-Hit-Ton Indians v. United States, see note 3. As a matter of clarification, the Fifth Amendment does not protect aboriginal title. The compensation flows from the statutory direction to pay. In the absence of such direction, the U.S. government is not legally obliged to pay compensation for a claim based upon original Indian title. 44 R.S.C. 1985, App. II, No. 10.
United States v. Covenant (2007) ❑ Parties entered into a consent agreement to resolve the lawsuit alleging that Covenant discriminated against people with disabilities when it restricted the use of mobility aids. ❑ The settlement provided that Covenant may restrict use of mobility aids when there is a direct threat to the health and safety of the resident or others, or when the use would result in substantial property damage. ❑ Covenant may establish reasonable traffic and parking rules such as regulating the speed and setting rules for yielding to pedestrians. ❑ Covenant could not require the residents to purchase liability insurance or obtain a doctor’s certificate. Motorized Transportation and Fair Housing ■ United States v. Covenant (cont.) ❑ Under the consent order Covenant may not require people who use mobility aids to eat at specified tables in the dining room, but it may designate specific seating to ensure that mobility aids do not block ingress or egress of others in case of emergency. Motorized Transportation and Fair Housing ■ Policy Considerations: ❑ Policies restricting the use of mobility aids should make clear that they are responding to direct health and safety threats. Other issues, such as staff convenience or marketing issues, should not be considered in implementing the policy. ❑ Where possible, document the threats to health and safety that necessitate the restrictions. For example, compile a record of accidents that have occurred and articulate why the particular restrictions are necessary to prevent them. Motorized Transportation and Fair Housing ❑ Avoid creating restrictions based only on generalized judgments that mobility aids are “dangerous.” ❑ Avoid liability insurance requirements. ❑ Regularly review admission agreements and mobility aid policies and practices to ensure that they comply with the FHA. ❑ Ensure staff are trained in the organization's mobility aids policy. ❑ Do not restrict access to common areas. ❑ Do not request medical records. Discharge and Fair Housing ❑ Screening on the basis a disability is also prohibited by the Fair Housing Laws. ❑ Case law allows for inquiries based on functional limitation as it relates to the Assisted Living License requirements. Discharge and Fair Housing
United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996) (govern- ment is entitled to a personal money judgment equal to the amount involved in the money laundering offense, as well as order forfeiting specific assets involved in, or traceable to, the offense; in addition, if the statutory requirements are met, the government may be entitled to forfeit substitute assets); United States v. Cleveland, 1997 WL 537707 (E.D. La. Aug. 26, 1997), modified, 1997 WL 602186 (E.D. La. Sept. 29, 1997) (government entitled to a money judgment equal to the amount of money de- fendant laundered in money laundering case). The find- ing the court is required to make will depend on the na- ture of the forfeiture judgment. A number of cases have approved use of money judgment forfeitures. The Com- mittee takes no position on the correctness of those rulings. To the extent that the government is seeking forfeit- ure of a particular asset, such as the money on deposit in a particular bank account that is alleged to be the proceeds of a criminal offense, or a parcel of land that is traceable to that offense, the court must find that the government has established the requisite nexus be- tween the property and the offense. To the extent that the government is seeking a money judgment, such as a judgment for the amount of money derived from a drug trafficking offense or the amount involved in a money laundering offense where the actual property subject to forfeiture has not been found or is unavail- able, the court must determine the amount of money that the defendant should be ordered to forfeit. The court may make the determination based on evi- dence in the record, or on additional evidence submit- ted by the defendant or evidence submitted by the gov- ernment in support of the motion for the entry of a judgment of forfeiture. The defendant would have no standing to object to the forfeiture on the ground that the property belonged to someone else. Under subdivision (b)(2), if the court finds that prop- erty is forfeitable, it must enter a preliminary order of forfeiture. It also recognizes that any determination of a third person’s interest in the property is deferred until an ancillary proceeding, if any, is held under sub- division (c). Subdivision (b)(3) replaces Rule 32(d)(2) (effective De- cember 1996). It provides that once the court enters a preliminary order of forfeiture directing the forfeiture of whatever interest each defendant may have in the forfeited property, the government may seiz...
United States v. Jones, 899 F.2d 1097 (11th Cir. 1990). Page 141 TITLE 18, APPENDIX—RULES OF CRIMINAL PROCEDURE Rule 35 The subdivision does not provide for any formalized method of bringing the error to the attention of the court and recognizes that the court could sua sponte make the correction. Although the amendment does not expressly address the issue of advance notice to the parties or whether the defendant should be present in court for resentencing, the Committee contemplates that the court will act in accordance with Rules 32 and 43 with regard to any corrections in the sentence. Com- pare United States x. Xxxx, supra (court erred in correct- ing sentence sua sponte in absence of defendant) with United States x. Xxxx, supra (court heard arguments on request by government to correct sentence). The Com- mittee contemplates that the court would enter an order correcting the sentence and that such order must be entered within the seven (7) day period so that the appellate process (if a timely appeal is taken) may pro- ceed without delay and without jurisdictional confu- sion. Rule 35(c) provides an efficient and prompt method for correcting obvious technical errors that are called to the court’s attention immediately after sentencing. But the addition of this subdivision is not intended to preclude a defendant from obtaining statutory relief from a plainly illegal sentence. The Committee’s as- sumption is that a defendant detained pursuant to such a sentence could seek relief under 28 U.S.C. § 2255 if the seven day period provided in Rule 35(c) has elapsed. Rule 35(c) and § 2255 should thus provide sufficient au- thority for a district court to correct obvious sentenc- ing errors. The Committee considered, but rejected, a proposal from the Federal Courts Study Committee to permit modification of a sentence, within 120 days of sentenc- ing, based upon new factual information not known to the defendant at the time of sentencing. Unlike the proposed subdivision (c) which addresses obvious tech- nical mistakes, the ability of the defendant (and per- haps the government) to come forward with new evi- dence would be a significant step toward returning Rule 35 to its former state. The Committee believed that such a change would inject into Rule 35 a degree of postsentencing discretion which would raise doubts about the finality of determinate sentencing that Con- xxxxx attempted to resolve by eliminating former Rule 35(a). It would also tend to confuse the jurisdiction of th...
United States v. Lomita, No.2 : I 3-CV-00707 (E.D. Cal. filed March 3,2013).
