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8th U.S. Circuit Court of Appeals Digest: Jan. 4, 2023

Criminal Law



Cross-Examination of Government Witnesses; Sufficiency of Evidence

Defendants were convicted of carjacking resulting in serious bodily injury and using and discharging a firearm during and in relation to the carjacking offense. On appeal, defendants challenged the limiting of their cross-examination of government witnesses, the jury instructions, and the sufficiency of the evidence supporting their convictions.

Where the government witnesses would have likely invoked their Fifth Amendment rights on cross-examination, the district court did not violate defendants’ Confrontation Clause rights in limiting questioning, and although the evidence was sufficient to support the carjacking conviction, the court vacated the discharge of a firearm conviction as the evidence demonstrated that the carjacking offense had ended when defendants discharged their firearms, requiring downgrading of the offense to use of a firearm.

Kelly, J., dissenting: “The district court barred defense counsel from “inquiring in any way” into Maho’s and High Pipe’s use of drugs before, during, or after “the events on trial.” As a result, Long Pumpkin and Crowe were limited in their ability “to test the truth and accuracy” of these witnesses’ direct testimony, United States v. Rubin, 836 F.2d 1096, 1100 (8th Cir. 1988) — testimony that was critical to the defendants’ ultimate convictions. Our cases establish that this type of limitation on cross-examination violates a criminal defendant’s right to confrontation under the Sixth Amendment. See id. Because I believe such a violation occurred here, I would reverse Long Pumpkin’s and Crowe’s carjacking and § 924(c) convictions and remand their cases for retrial.”

Judgment is affirmed in part, vacated in part.

20-2743 & 20-2770 U.S. v. Long Pumpkin, Colloton, J. Appealed from U.S. District Court, District of South Dakota.




Firearms Offense

Substantive Reasonableness of Sentence; Sentencing Factors

Defendant appealed the sentence imposed after he pled guilty to a firearms offense, challenging the substantive reasonableness of the sentence.

Where the district court considered all relevant and appropriate sentencing factors and did not give improper weight to any factor, the sentence imposed was presumptively reasonable.

Judgment is affirmed.

22-2839 U.S. v. Westerfield, per curiam. Appealed from U.S. District Court, Southern District of Iowa.


Sentencing Enhancement

Armed Career Criminal Act; Prior “Serious Drug Offense”

The government appealed the district court’s denial of a sentencing enhancement for defendant’s conviction for unlawful possession of a firearm. The district court found that defendant did not qualify for the enhancement under the Armed Career Criminal Act because a prior Missouri cocaine conviction was not a “serious drug offense” because the Missouri statute was not as limited as the federal definition of cocaine.

Because Missouri’s definition of cocaine at the time of defendant’s underlying drug offense was broader than the contemporaneous federal definition of cocaine, the district court correctly declined to apply the ACCA sentencing enhancement.

Loken, J., dissenting: “It is also quite clear that no positional cocaine isomer offense has ever been prosecuted in Missouri. Indeed, the statute makes it clear that no such offense could be prosecuted because cocaine positional isomers have not been lawfully scheduled in accordance with § 195.015.4. What Missouri prosecutor would even attempt to bring such a charge, knowing it would be subject to a clear invalidity defense? In these circumstances, the realistic probability rule should apply and reinforce my conclusion that the Missouri statute is not overbroad.”

Judgment is affirmed.

21-3443 U.S. v. Myers, Kelly, J. Appealed from U.S. District Court, Western District of Missouri.





Withholding of Removal

Convention Against Torture; Cognitive Impairments

Petitioner sought review of the denial of his application for withholding of removal under the INA and Convention Against Torture. Petitioner, who suffers from serious cognitive impairments, alleged that he was recruited by gang members in his home country who attacked and threatened him when he refused to join.

Although the court lacked jurisdiction to review the agency’s denial of removal, which was a question of fact, and petitioner failed to raise the legal standard applied by the IJ in determining nexus between past or future prosecution and petitioner’s protected characteristics, the court found that the BIA provided an insufficient basis to overturn the IJ’s grant of relief under CAT.

Loken, J., concurring in part and dissenting in part: “ I respectfully dissent from the court’s conclusion in Part III that the BIA erred in vacating the IJ’s decision to grant Mr. Alvarez-Gomez protection under the Convention Against Torture (CAT). CAT relief is governed by the Attorney General’s regulations implementing this country’s obligations under the international Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Our review of factual challenges — which are often difficult, as in this case — is ‘highly deferential.’”

Petition is denied in part, granted in part, case remanded.

21-2279 Alvarez-Gomez v. Garland. Petition for Review of an Order of the Board of Immigration Appeals.

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