Sunday, February 2, 2020

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Fed. R. Evid. 404(b)

Evidence that the victim of a stabbing was under the influence of methamphetamine at the time of the stabbing was relevant for a non-propensity purpose: to establish and explain the victim's erratic and violent behavior, in support of the defendant's self-defense defense. This evidence should not have been excluded on 404(b) grounds. And thus the Tenth Circuit reverses a first-degree murder conviction in United States v. Tony

Parsing the Plea Agreement

Think you've extracted a promise from the government in your client's plea agreement? Think again---especially if the language includes a condition to be determined "in the government's sole discretion." That's the lesson of United States v. Rubbo, which holds that the government did not breach a plea agreement by recommending a smaller percentage departure than "promised." Read Rubbo for a sense of how the Tenth Circuit reads plea agreements that are conditioned on acts of the defendant as interpreted by the government.

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