United States v. James Allen Jessup, 966 F.2d 1354 (10th Cir. 1992). · Go Syfert
United States v. James Allen Jessup, 966 F.2d 1354 (10th Cir. 1992). Cases Citing This Book View Copy Cite
39 citation events (8 in the last 25 years) across 7 distinct courts.
Strongest positive: United States v. Jose Cardona (ca5, 2011-04-04)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
cited Cited as authority (rule) United States v. Jose Cardona
5th Cir. · 2011 · confidence medium
See, e.g., United States v. Krueger, 415 F.3d 766, 779 (7th Cir.2005); United States v. Jessup, 966 F.2d 1354, 1356-57 (10th Cir.1992).
cited Cited as authority (rule) United States v. Chandler
10th Cir. · 2001 · confidence medium
United States v. Jessup, 966 F.2d 1354, 1356-57 (10th Cir.1992).
examined Cited as authority (rule) United States v. Ryan (3×) also: Cited "see"
10th Cir. · 2001 · confidence medium
Hence, the issue is primarily a legal one for which a de novo standard of review is appropriate.” United States v. Jessup, 966 F.2d 1354, 1356 (10th Cir.1992).
discussed Cited as authority (rule) United States v. Biliki Brimah
7th Cir. · 2000 · confidence medium
See United States v. Tauil-Hemandez, 88 F.3d 576, 580-81 (8th Cir.1996); Kim, 25 F.3d at 1432-36 ; United States v. Montoyar-Ortiz, 7 F.3d 1171, 1181-82 (5th Cir. 1993); United States v. Jenkins, 4 F.3d 1338, 1344-45 (6th Cir.1993); United States v. Tejada, 956 F.2d 1256, 1260-63 (2d Cir.1992); United States v. Jessup, 966 F.2d 1354, 1356-57 (10th Cir.1992); McCrory, 930 F.2d at 70 ; United States v. Toms, 926 F.2d 321, 322-25 (3d Cir.1991); United States v. Lynch, 934 F.2d 1226, 1234-37 (11th Cir.1991).
discussed Cited as authority (rule) United States v. Forsythe (2×)
D. Kan. · 1997 · confidence medium
U.S. v. Crousore, 1 F.3d 382 (6th Cir.1993); U.S. v. Olvera, 954 F.2d 788, 793 (2d Cir.) cert. denied, 505 U.S. 1211 , 112 S.Ct. 3011 , 120 L.Ed.2d 885 (1992); U.S. v. Franklin, 902 F.2d 501 (7th Cir.) cert. denied, 498 U.S. 906 , 111 S.Ct. 274 , 112 L.Ed.2d 229 (1990); U.S. v. Jordan, 890 F.2d 968 (7th Cir.1989); see also, U.S. v. Lassiter, 929 F.2d 267 (6th Cir.1991); U.S. v. Martin, 737 F.Supp. 819 (S.D.N.Y.) aff'd, 923 F.2d 846 (2nd Cir.1990) (table); see also, U.S. v. Yates, 22 F.3d 981 (10th Cir.1994) (denial of acceptance of responsibility because defendant was indicted for other conduc…
discussed Cited as authority (rule) United States v. James R. Ledbetter
10th Cir. · 1997 · confidence medium
"This circuit has followed the approach of balancing the effect of applying the exclusionary rule at sentencing against the costs of impairing effective and suitable punishment of proven offenders and unduly complicating sentencing procedures." United States v. Jessup, 966 F.2d 1354, 1356 (10th Cir.1992) (footnote omitted) (sentencing guidelines case, citing United States v. Graves, 785 F.2d 870, 873 (10th Cir.1986) (pre-sentencing guidelines case)).
discussed Cited as authority (rule) United States v. Ledbetter
10th Cir. · 1997 · confidence medium
“This circuit has followed the approach of balancing the effect of applying the exclusionary rule at sentencing against the costs of impairing effective and suitable punishment of proven offenders and unduly complicating sentencing procedures.” United States v. Jessup, 966 F.2d 1354, 1356 (10th Cir. 1992) (footnote omitted) (sentencing guidelines case, citing United States v. Graves, 785 F.2d 870, 873 (10th Cir. 1986) (pre-sentencing guidelines case)).
discussed Cited as authority (rule) United States v. Carney
10th Cir. · 1997 · confidence medium
In United States v. Graves, 785 F.2d 870, 873 (10th Cir. 1986), and United States v. Jessup, 966 F.2d 1354, 1356-57 (10th Cir. 1992), cert. denied, 113 S. Ct. 1398 (1993), we held that evidence obtained by government agents in violation of state law would not be barred from use in sentencing unless its use would provide a substantial incentive for such 4 This structure of the Oklahoma statutory scheme renders inapplicable United States v. Bagheri, 999 F.2d 80, 84 (4th Cir. 1993) (noting in dicta that a statutory scheme providing for expungement "arguably creates a liberty interest intended to …
discussed Cited as authority (rule) United States v. Brenton Lee Carney
10th Cir. · 1997 · confidence medium
In United States v. Graves, 785 F.2d 870, 873 (10th Cir.1986), and United States v. Jessup, 966 F.2d 1354, 1356-57 (10th Cir. 1992), cert. denied, 507 U.S. 965 , 113 S.Ct. 1398 , 122 L.Ed.2d 772 (1993), we held that evidence obtained by government agents in violation of state law would not be barred from use in sentencing unless its use would provide a substantial incentive for such violation.
cited Cited as authority (rule) United States v. Steven Robertson, A/K/A Steven Davis, A/K/A Whitey, A/K/A Johnny Lee, A/K/A Mohammed, United States of America v. Edward Graves, A/K/A Poncho, United States of America v. Glenda Walker, United States of America v. Anthony Carlos Torres
10th Cir. · 1995 · confidence medium
United States v. Jessup, 966 F.2d 1354, 1356 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1398 , 122 L.Ed.2d 772 (1993).
cited Cited as authority (rule) United States v. Robertson
10th Cir. · 1995 · confidence medium
United States v. Jessup, 966 F.2d 1354, 1356 (10th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1398 , 122 L.Ed.2d 772 (1993).
discussed Cited "see" United States v. Elliott Sylvester Thurmond
10th Cir. · 1998 · signal: see · confidence high
See United States v. Jessup, 966 F.2d 1354, 1356-57 (10th Cir.1992); United States v. Graves, 785 F.2d 870, 873-76 (10th Cir.1986); accord United States v. Jenkins, 4 F.3d 1338, 1344-45 (6th Cir.1993); United States v. Tejada, 956 F.2d 1256, 1260-63 (2d Cir.1992).
discussed Cited "see" United States v. Thurmond
10th Cir. · 1998 · signal: see · confidence high
See United States v. Jessup, 966 F.2d 1354, 1356-57 (10th Cir. 1992); United States v. Graves, 785 F.2d 870, 873-76 (10th Cir. 1986); accord United States v. Jenkins, 4 F.3d 1338, 1344-45 (6th Cir. 1993); United States v. Tejada, 956 F.2d 1256, 1260-63 (2d Cir. 1992).
cited Cited "see, e.g." United States v. Carnes
10th Cir. · 2000 · signal: see, e.g. · confidence low
See, e.g., United States v. Jessup, 966 F.2d 1354 (10th Cir. 1992). 6.
discussed Cited "see, e.g." United States v. Jenkins
6th Cir. · 1993 · signal: see also · confidence low
See also United States v. Jessup, 966 F.2d 1354 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1398 , 122 L.Ed.2d 772 (1993) (defendant properly denied two-point reduction for acceptance of responsibility based on information obtained by the government in violation of state law on medical privilege).
discussed Cited "see, e.g." United States v. Jenkins
6th Cir. · 1993 · signal: see also · confidence low
See also United States v. Jessup, 966 F.2d 1354 (10th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1398 , 122 L.Ed.2d 772 (1993) (defendant properly denied two-point reduction for acceptance of responsibility based on information obtained by the government in violation of state law on medical privilege).
discussed Cited "see, e.g." United States v. Lazaro Roman (2×)
11th Cir. · 1993 · signal: see also · confidence low
The exclusionary rule might, however, "apply in sentencing proceedings [where the] evidence [was] unconstitutionally seized solely to enhance the defendant's sentence." Id. at 1237 n. 15; see also United States v. Jessup, 966 F.2d 1354 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1398 , 122 L.Ed.2d 772 (1993); cf. United States v. Gilmer, 811 F.Supp. 578 (D.Colo.1993) (egregious circumstances prohibited use of evidence at sentencing). 27 Lynch provides an illustration of a constitutional challenge to a prior conviction that would be irrelevant for sentencing purposes.
discussed Cited "see, e.g." United States v. Dana Ray Morrison (2×)
6th Cir. · 1993 · signal: see also · confidence medium
See also United States v. Jessup, 966 F.2d 1354, 1356 (10th Cir.1992) (acceptance of responsibility reduction denied where defendant, who had been arrested and indicted under the Mann Act, "continued [his] behavior of sexually molesting young boys" while out on bond); United States v. Olvera, 954 F.2d 788, 793 (2d Cir.) (acceptance of responsibility reduction denied, in part, where defendant, who was convicted of conspiring to distribute a controlled substance, smuggled a controlled substance into the prison where he was awaiting sentencing), cert. denied, --- U.S. ----, 112 S.Ct. 3011 , 120 L…
discussed Cited "see, e.g." United States v. Milton Eugene Robins
5th Cir. · 1993 · signal: see also · confidence medium
See also United States v. Jessup, 966 F.2d 1354, 1356-1357 (10th Cir.1992) (recognizing the significant limitations of the Verdugo decision: "the Ninth Circuit has since cautioned that the Verdugo holding has a narrow scope and requires exclusion only when the use of illegally seized evidence provides a substantial incentive for illegal searches.") (citing United States v. Vandemark, 522 F.2d 1019, 1022-1025 (9th Cir.1975)).
discussed Cited "see, e.g." United States v. Robins
5th Cir. · 1992 · signal: see also · confidence medium
See also United States v. Jessup, 966 F.2d 1354, 1356-1357 (10th Cir.1992) (recognizing the significant limitations of the Verdugo decision: “the Ninth Circuit has since cautioned that the Verdugo holding has a narrow scope and requires exclusion only when the use of illegally seized evidence provides a substantial incentive for illegal searches.”) (citing United States v. Vandemark, 522 F.2d 1019, 1022-1025 (9th Cir.1975)).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
James Allen JESSUP, Defendant-Appellant
91-6296.
Court of Appeals for the Tenth Circuit.
Jun 11, 1992.
966 F.2d 1354
1992 U.S. App. LEXIS 13316
1992 WL 126712
Edward J. Kumiega, Asst. U.S. Atty., Oklahoma City, Okl. (Timothy D. Leonard, U.S. Atty., with him on the brief), for plaintiff-appellee., Susan M. Otto, Acting Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.
Baldock, Brorby, Belot.
Cited by 28 opinions  |  Published
BELOT, District Judge.

James Allen Jessup (Defendant) appeals his sentence alleging the trial court erred by using illegally obtained evidence to deny him credit under the sentencing guidelines for acceptance of responsibility. We hold the sentencing court did not err in denying Jessup a two point reduction for acceptance of responsibility.

Jessup was employed as a truck driver for an interstate trucking company. He met a fourteen year old male juvenile, J.E.P., at a truck stop in Kentucky on November 18, 1990. Jessup gave J.E.P. a ride in his truck and transported him back to Jessup’s mother’s home in Oklahoma. During the journey, Jessup and J.E.P. engaged in oral sex and mutual masturbation. Upon arrival in Oklahoma, Jessup bought J.E.P. a one-way bus ticket to J.E.P.’s parents’ home in Louisiana. J.E.P. ran away a week later and hitchhiked back to Oklahoma. He contacted Arnold Carter, a friend of Jessup’s, who took him to the truckstop where Jessup worked.

Jessup and J.E.P. left Oklahoma for California on December 2 and returned on December 10, 1990. During the trip Jessup and J.E.P. engaged in sexual activity. On December 13, the pair left Oklahoma for New York. On December 14, they were detained by security officers at a truckstop near Joplin, Missouri. J.E.P. told a security officer he' had travelled with Jessup through several states and they were engaging in sexual activity daily.

Jessup was arrested and indicted in the Western District of Missouri for violating the provisions of the Mann Act, 18 U.S.C. § 2423, by transporting a minor, J.E.P., across interstate lines for the purpose of engaging in prohibited sexual contact. He was released on bond. The indictment was dismissed on March 7, 1991, and a complaint alleging the same offense was filed in the Western District of Oklahoma the next day. Jessup was subsequently indicted in Oklahoma on April 4,. 1991. The court ordered Jessup released on bond, but . ordered him to submit to drug tests, psychological evaluation, and blood tests for the Acquired Immune Deficiency Syndrome (AIDS) virus. The test results were positive for the AIDS virus and the results were disclosed to Jessup and the government.

During the course of further investigation, the government learned from J.E.P. that Jessup had engaged in anal and oral sex with other male juveniles. Some of the sexual encounters with one of the juveniles occurred while Jessup was on bond from the Western District of Missouri. The government approached Arnold Carter, who initially denied any knowledge of Jess-up’s sexual involvement with other juveniles, but disclosed the information after an FBI agent informed him that Jessup “had AIDS”. The allegations of additional sexual conduct were included in paragraphs 8, 9, and 10 of the presentenee report. Jess-up filed a written objection to. the inclusion of this information in the report.

Jessup pled guilty to the charge on August 15, 1991. At his sentencing hearing, the court assumed the information contained in paragraphs 8, 9, and 10 was obtained illegally, but ruled the information was not prohibited from use in a sentencing decision. The court sentenced Jessup to a term of 30 months imprisonment and[*1356] two years of supervised release following his release from imprisonment. ,

At issue in this case is whether a district court may deny credit for acceptance of responsibility when the information relied on by the court was obtained in violation of state law. At the time sentence was imposed, Oklahoma law prohibited the disclosure of the identity of any person having a communicable disease. Okla.Stat. tit. 63, § 1-502.2(A) (West 1990). [1]

The burden of proof for establishing entitlement to a reduction of the offense level for acceptance of responsibility is on the defendant. United States v. Rogers, 899 F.2d 917, 924 (10th Cir.), cert. denied - U.S. -, 111 S.Ct. 113, 112 L.Ed.2d 83 (1990). The defendant must meet his burden by a preponderance of the evidence. Id. Generally, the standard of review of an “acceptance of responsibility” determination under the guidelines is the “clearly erroneous” standard. U.S. v. Spedalieri, 910 F.2d 707, 712 (10th Cir.1990). However, the district court’s determination that illegally obtained information can be considered for sentencing purposes is a legal conclusion requiring this court to apply certain legal principles. Hence, the issue is primarily a legal one for which a de novo standard of review is appropriate. U.S. v. Roberts, 898 F.2d 1465, 1469 (10th Cir. 1990).

Congress has authorized a broad review of an offender’s background for determination of the appropriate sentence. 18 U.S.C: § 3661 provides:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

Congress intended that offenders be sentenced according to their individual circumstances and characteristics. Jessup’s continued behavior of sexually molesting young boys following his arrest and indictment is indisputedly relevant to the question of whether he manifested an acceptance of responsibility for his actions. Jess-up did not deny the accuracy of the information in the presentence report.

This circuit has followed the approach of balancing the effect of applying the exclusionary rule [2] at sentencing against the costs of impairing effective and suitable punishment of proven offenders and unduly complicating sentencing procedures. See United States v. Graves, 785 F.2d 870, 873 (10th Cir.1986) (pre-sentencing guidelines case). As a general rule, the Graves court believed the extension of the exclusionary rule to sentencing proceedings would have an insignificant deterrent effect and would intolerably delay and disrupt sentencing proceedings by requiring the sentencing judge to determine whether every item of information relied on had a lawful origin. Id.

Other circuits have considered the question of extending the exclusionary rule to the sentencing context. In U.S. v. McCrory, 930 F.2d 63 (D.C.Cir.1991), the district court considered evidence excluded at trial of large quantities of crack cocaine, money, guns, and jewelry seized in a search of the defendant’s apartment. The court analyzed the issue in terms of “whether the deterrent effect achieved will outweigh the detrimental effects of excluding the reliable evidence on the court’s ability to achieve the goals of appropriate sentencing.” 930 F.2d at 69. The court held the deterrent effect did not outweigh the detrimental effect of excluding the evidence. 930 F.2d at 69. Central to. the court’s holding was its belief that, absent a showing of a purposeful design to obtain evi[*1357] dence to increase a defendant’s base offense level at sentencing, the police misconduct was insufficient to justify interference with individualized sentencing. [3]

In Verdugo v. United States, 402 F.2d 599, 611-13 (9th Cir.) cert. denied 397 U.S. 925, 90 S.Ct. 931, 25 L.Ed.2d 105 (1968), the court held that where the use of evidence obtained in violation of the Fourth Amendment provided a substantial incentive for unconstitutional searches and seizures, the evidence should be excluded from consideration at sentencing. However, the Ninth Circuit has since cautioned that the Verdu-go holding has a narrow scope and requires exclusion only when the use of illegally seized evidence provides a substantial incentive for illegal searches. United States v. Vandemark, 522 F.2d 1019, 1022-25 (9th Cir.1975).

In the case at bar, the government obtained the information of Jessup’s medical condition through a court order directing Jessup to submit to a blood test as a condition of his bond. The constitutionality of this order is not disputed. See Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833-34, 16 L.Ed.2d 908 (1966). Upon learning that other juveniles had been exposed to the AIDS virus, the government acted to determine the identity of the juveniles. FBI agents initially attempted to ascertain their identity without revealing Jessup had the AIDS virus, but when Carter denied any knowledge of the other juveniles, the agents revealed the information in an effort to induce Carter to cooperate.

Application of the exclusionary rule in this case is not warranted. There is no evidence that the agents’ actions were intended to secure an increased sentence for the defendant. Indeed, there is nothing in the record which suggests that the agents’ actions were motivated by any purpose other than to learn the identity of other juveniles who may have been exposed to the AIDS virus through sexual contact with the defendant. Under these circumstances, no deterrent effect would be achieved by holding that the district court erroneously considered the evidence of the defendant’s continued misconduct.

The district court properly considered Jessup’s continued conduct following his arrest of engaging in prohibited, sexual acts. Its denial of a two point reduction for acceptance of responsibility is AFFIRMED.

1

. Oklahoma enacted legislation in 1991 requiring that all persons arrested for sex crimes be tested for the AIDS virus and that the victim(s) be notified of the test results. Okla.Stat. tit. 63, § 1-524(A-C) and Okla.Stat. tit. 63, § 1-525(A-B) (1991). Consideration of the amendment is unnecessary to the disposition of this case.

2

. The court will assume, without deciding, that the FBI agents’ actions in disclosing the information to Carter were contrary to statute.

3

. The McCrory court left open the question whether suppression would be necessary in the sentencing phase upon- a showing of egregious police misconduct. 930 F.2d at 69.