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August 11, 2006

Notable Fifth Circuit redo

Though not a major sentencing case, I was intrigued by a new opinion from the Fifth Circuit in US v. Yi, No. 05-20144 (6th Cir. Aug 10, 2006) (available here), which starts with these sentences:

We previously issued an opinion that was predicated, in part, on a misrepresentation by the government.  See United States v. Yi, 451 F.3d 362 (5th Cir. 2006).  Upon reconsideration, we withdraw the prior opinion in its entirety and replace it with the following.

A later footnote in the Yi opinion explains the particulars:

On the first go-around, the government misrepresented a fact material to our decision to uphold Zheng's conviction for trafficking in the counterfeit Nike sandals....  Though the government now concedes its misrepresentation, it nonetheless tries to salvage the conviction ... [but its] argument plainly is meritless and solidifies our view that the evidence does not support Zheng's conviction on this count.

August 11, 2006 at 01:23 AM | Permalink


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