091612P.pdf   06/07/2010  United States  v.  Galen Robertson
   U.S. Court of Appeals Case No:  09-1612
   U.S. District Court for the District of North Dakota - Fargo   
   [PUBLISHED] [Gruender, Author, with Loken, Chief Judge, and
   Colloton, Circuit Judge]
   Criminal case - criminal law. When the court is faced with a conflict in
   its precedents, the better practice is to look to the earliest opinion on the
   matter; applying that principle, the line of cases holding that failure to
   raise a double jeopardy claim at trial waives the issue for appeal has the
   longer history in the court's precedents, and that principle would be
   applied in this case; as a result, defendant's claim that convictions for
   both attempted aggravated sexual abuse and attempted abusive sexual
   contact constitutes a double-jeopardy violation must be reviewed under a
   plain error standard because he failed to raise the issue at trial; here,
   conviction on both counts is a plain error warranting reversal of
   defendant's conviction and sentence for the crime of attempted abusive
   sexual contact; evidence was sufficient to support a conviction for
   attempted aggravated sexual abuse; challenges to jury instructions
   rejected; admission of hearsay evidence that was cumulative of earlier
   trial testimony by the declarant was harmless error; district court did not
   abuse its discretion by granting the government's request for a trial
   continuance when it was discovered that the prosecution had failed to
   provide defendant with a DNA lab report.