Summaries of Selected Opinions
| Publication year | 2013 |
| Pages | 157 |
From the Courts U.S. Court of Appeals for the Tenth Circuit
Summaries of Selected Opinions
Summaries of selected Tenth Circuit Court of Appeals 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. They are provided as a service by the CBA and are not the official language of this 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: www.cobar.org (click on "Opinions/Rules/Statutes").
No. 11-3271. United States v. Toombs. 04/26/2013. D.Kan. Judge Lucero. Fifth Amendment-Self-incrimination-Use of Defendant's Testimony on Retrial-Dismissal of Indictment Without Prejudice.
In 2008, a jury found defendant guilty on seven counts of drug and firearm felony offenses. The Tenth Circuit reversed and remanded his case for violations of the Speedy Trial Act. The district court dismissed his indictment without prejudice, the government filed a new indictment, and after a second trial, the jury convicted him of six charges. At the second trial, the government presented evidence indicating that defendant had participated in a drug conspiracy run out of several homes in the Kansas City region. Over defendant's objection, the district court permitted the government to read into evidence the entire transcript of defendant's testimony at his 2008 trial.
On appeal, defendant challenged the admission of his entire testimony from his first trial. He contended that certain portions of his testimony describing his previous drug conviction, past drug use, and sexual relationships were irrelevant, prejudicial, or constituted improper prior conviction evidence. The Circuit noted that use of prior testimony does not violate a defendant's Fifth Amendment right against self-incrimination; however, such testimony is subject to the Federal Rules of Evidence. Nevertheless, any error in this case was harmless, because the record contained ample evidence of defendant's guilt, and the district court gave adequate limiting instructions, advising the jury that it should consider defendant's acts and prior convictions mentioned in his testimony solely for purposes of intent, knowledge, identity, impeachment, and absence of mistake or accident.
Defendant also asserted that the district court erred in dismissing the previous indictment without prejudice. The Circuit determined that the district court had properly considered the statutory factors applicable to a dismissal without prejudice. [See 18 USC § 3162(a)(2).] Notwithstanding the considerable pretrial delay, the district court did not abuse its discretion in determining that the factors favored a dismissal without prejudice. The Circuit therefore affirmed defendant's conviction.
No. 12-4001. United States v. Mackay III. 04/30/2013. D.Utah. Judge Baldock. Sufficiency of Evidence-Prescription of Controlled Substances.
Defendant, a medical doctor who specialized in pain management, was convicted of three counts of using a telephone in furtherance of drug distribution and thirty-seven counts of unlawfully distributing controlled substances. Two of the unlawful distribution counts related to a patient who died. On appeal, defendant challenged the sufficiency of the evidence on all counts. He also raised evidentiary and sentencing issues.
With regard to the non-death counts, the Tenth Circuit noted that the jury had to conclude beyond a reasonable doubt that defendant knowingly and intentionally prescribed the controlled substances to his patients outside the usual course of medical practice or without a legitimate medical purpose. The government's theory was that defendant prescribed narcotic medications without taking adequate medical histories, failed to conduct physical examinations, provided excessive quantities of d rugs, and provided prescriptions...
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