Tcl - Tenth Circuit Summaries - April 2007 - U.s. Court of Appeals for the Tenth Circuit

• Publication year: 2007
• Pages: 119
• Citation: Vol. 36 No. 4 Pg. 119

36 Colo.Law. 119 Colorado Lawyer 2007.

2007, April, Pg. 119. TCL - Tenth Circuit Summaries - April 2007 - U.S. Court of Appeals for the Tenth Circuit

The Colorado Lawyer
April 2007
Vol. 36, No. 4 [Page 119]

From the Courts
U.S. Court of Appeals for the Tenth Circuit

Tenth Circuit Summaries

Summaries of Selected Opinions

Summaries of selected Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. The summaries of the U.S. Court of Appeals for the Tenth Circuit are provided as a service by the CBA and are not the official language of the Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website http://www.cobar.org/hotlinks.cfm (United States Courts link to the Tenth Circuit).

No. 05-2170. U.S. v. Sinks. 01/23/2007 D.N.M., Judge Lucero. Prejudicial Effect of Evidence - Omission of Interstate Commerce Element in Indictment - Delay in Preparation of Pre-Sentence Report.

The defendant was convicted by a jury of knowingly possessing stolen explosive materials and of being a felon in possession of explosives, after police found a box containing dynamite in a stolen truck he was driving. Several of the sticks were taped together with wires protruding from the top of the bundle, and others had what appeared to be sparklers sticking out of them. Defendant maintained that the jury should be prevented from seeing photographs of the dynamite wrapped in tape with protruding wires, or from hearing the dynamite referred to as an "improvised explosive device." The dynamite lacked a detonator that would have been required to cause it to explode

The district court permitted testimony, however, that one of the policemen who assisted with removal of the dynamite had been wearing a protective bomb suit, and that police had checked the vehicle for other incendiary devices or explosives. Other factors kept the notion of a "bomb" before the jury. On one of the mornings of defendant's trial, there was an unspecified threat at the courthouse, which the U.S. Marshals used as an opportunity to conduct a bomb-threat drill. The judge instructed the jury that the search was a training exercise, unrelated to the trial. Finally, as the prosecutor was introducing exhibits, he misidentified exhibit "9-L" as "9-11." The court immediately corrected him.

After the jury found defendant guilty, the probation office was not notified on a timely basis of his conviction. As a result, his presentence report was not prepared until sixteen months after he was convicted, and his sentencing was delayed.

On appeal, the defendant first contended that the district court should not have admitted photographs of the taped and wired dynamite, or permitted testimony mentioning "other incendiary devices" or of bomb squad procedures. The Tenth Circuit held that the photos were relevant to show defendant's possession of the dynamite. The bomb squad evidence was relevant to show that the dynamite in the truck was an explosive, a fact that defendant refused to stipulate. This evidence was not used to portray the defendant as a "mad bomber"; rather, it had a minimal role in the trial and its admission fell within the trial court's discretion. In light of the substantial evidence against defendant, he failed to show that a witness's use of the phrase "incendiary devices" on the day the court received the unspecified threat substantially influenced the jury's verdict.

Defendant next urged error because the indictment did not charge, and the jury did not find, that the dynamite had been shipped or transported in...