Tenth Circuit Blog

2012-02-07T10:04:00.001-07:00

U.S. v. Strandlof, 2012 WL 247995 (1/27/12) (Col.) (Published) - The 10th elects to decide an issue with lengthy opinions by the majority and the dissent on an issue the S. Ct. will decide by this June in U.S. v. Alvarez, 2011 WL 3626544 (U.S. 10/17/11): whether the Stolen Valor Act, which prohibits making false claims about receiving military honors, violates the First Amendment. The 10th's explanation for why it is going to the trouble of reaching a decision when the S. Ct. will soon render it irrelevant is: "We've always done it this way," "Our practice as a court has been to decide cases that are ripe even while parallel cases are under review by the S. Ct." The 10th didn't explain why that practice made sense. In any event, the next time you hear a court express concern for the waste of judicial resources, remember this case.
The majority holds that knowingly false statements are not constitutionally protected in and of themselves. A law regulating such statements is unconstitutional only if it unduly chills speech that matters, i.e., it is so suffocating as to afford inadequate breathing space for constitutionally valuable speech. The majority felt there was almost no danger anyone would suppress constitutionally valuable speech to avoid punishment under the Act, which the 10th interprets to require an intent to deceive. Making false claims about military medals does not contribute to any conceivable public debate. A person is very unlikely to mistakenly claim to have been awarded a medal and the accuracy of any such statements is objectively verifiable. And, in any event, it reaches no farther than necessary to protect the legitimate interest involved. Dissenting Judge Holmes believed the government can only suppress knowingly false statements if they cause, or pose a significant risk of causing, injury. The Stolen Valor Act unconstitutionally prohibits statements that cause no injury, such as "grandpa bragging at the kitchen table about his war exploits."

U.S. v. Enriquez, 2012 WL 247961 (1/27/12) (N.M.) (unpub'd) - This case involves the co-defendant of a woman who was acquitted. The 10th finds it was just fine for the d. ct. to admit 404(b) evidence that Ms. Enriquez was found driving a green Excursion that had unusual smudges in the dust inside the car's rear quarter panels to which a drug dog had alerted, where no actual drugs were found. [10 grams of cocaine was found elsewhere in the car]. Ms. Enriquez was on trial for being a passenger in a blue Excursion 8 months later in which a bunch of marijuana was found in the gas tank. The 10th stressed how easy it should be to get evidence in through 404(b) and that Rule 403 should be used sparingly. In this case, the evidence showed Ms. Enriquez knew about the marijuana.

Hernandez v. Story, 2012 WL 207059 (1/25/12) (N.M.) (unpub'd) - Probable cause can be negated by information unlawfully disregarded by officers. But the disregarded evidence here did not negate probable cause.

Secsys, LLC v. Vigil, 2012 WL 171876 (1/23/12) (N.M.) (Published) - A firm's equal protection rights were not violated when it lost out on a bid for a state contract because state treasurer Robert Vigil awarded the contract to someone who was willing to give a certain woman a job on the terms she wanted. An intent to discriminate is required to establish such a violation. Here there was no such intent, only an intent to further Mr. Vigil's political career.

Falsehoods and Omissions in Search Warrant were Immaterial

2012-01-30T09:47:00.000-07:00

US v. Freerksen, No. 11-6044 (10th Cir. 1/24/12) (unpublished): Defendant entered conditional plea to possession of child pornography. She challenged the search of the digital camera and computer seized from the home she shared with her husband and co-defendant, Dean Freerksen, in which digital pictures of the abuse of an 11-year-old victim were found.

She argued the warrant was defective in that: 1) it stated that the victim said she was raped by three males, but it did not state that she thought the males were juveniles; 2) she described the vibrator used on her as being white and six inches long, but did not include her statement to the detective that it was dark and she couldn't see what was being done to her; and 3) the warrant stated she said pictures were taken with a digital camera, but failed to state that this was a statement made by the victim to her mother, who then told the detective. The trial court concluded the falsehoods and omissions were immaterial and the search was valid. The COA agreed. The age of the males did not make any less likely there would be incriminating evidence; probable cause did not depend on the description of the vibrator; and the failure to state that the girl told her mother that the camera was used to take pictures did not undermine the probable cause to seize the camera because there was no claim that the girl did not make the statements to her mother. Judgement affirmed.

US v. Freerksen, III, No. 11-6059 (10th 1/24/12)(unpublished): Companion case to above. This defendant also raised additional challenges to the validity of the search. It did not violate the Fourth Amendment for the warrant to be issued by a magistrate who had previously prosecuted the defendant for sex offenses when he was a prosecutor. It was not unreasonable to sentence Mr. Freerksen more harshly than his wife (he got 50 years, while she got 10 as a result of a plea agreement). His other argument is improperly based on the wrong guideline; he was sentenced pursuant to the child exploitation guideline and not the one applying to simple possession of child porn. A couple of other issues are cursorily rejected

Inmates Get Only One Bite At RDAP Apple

2012-01-30T09:46:00.000-07:00

Kyles v. Chester, No. 11-3226 (10th Cir. 1/25/12) (unpublished): Tenth Circuit upholds Bureau of Prisons' policy against allowing an inmate who has previously completed the Residential Drug Abuse Program (RDAP) and therefore received a sentence reduction from obtaining a second RDAP reduction in sentence in a subsequent case.

Capital Habeas Petitioner Established He Was Abandoned by his Counsel and Cause for Default

2012-01-26T09:21:00.001-07:00

Maples v. Thomas, 2012 WL 125438 (1/18/12) - This case shows that if circumstances are extreme enough even the S. Ct. will take pity on a capital habeas petitioner at least by a 7-2 vote. In this case, the petitioner procedurally defaulted his claims when no timely notice of appeal of a state district court habeas denial was filed. The petitioner's pro bono lawyers quit their firm, but did not tell the court or the petitioner that they had. The court sent news of the denial to the firm and local Alabama counsel. The firm's mail room sent the notice back without opening the envelope. The court clerk did nothing when it was returned. The local counsel did nothing because he had made it clear to the firm lawyers that he would leave everything about the case up to them. The S. Ct. held the petitioner had established cause for the default because his attorneys had abandoned him, but he did not learn of their abandonment until it was too late to appeal. These facts saved the case from application of the usual rule that neglect by habeas counsel is not enough to establish cause.

Justices Scalia and Thomas dissented on the grounds that the firm and local counsel were technically still representing the petitioner. This decision will lead every clever habeas petitioner to claim that her/his habeas attorney performed so badly that the attorney had abandoned the petitioner. The flood gates will open. Also interesting is the majority spent several pages noting how pathetic the Alabama capital counsel system is. At the time of the defendant's trial, capital trial counsel needed no particular expertise, and were paid $40 an hour capped at $1,000 per case. There is no provision for appointed habeas counsel in capital cases in Alabama.

SCOTUS Reverses Denial of Qualified Immunity; Cops Reasonably Entered Home When Parent Refused to Talk to Them

2012-01-26T09:19:00.002-07:00

Ryburn v. Huff, 2012 WL 171121 (1/23/12) - A unanimous per curiam reversal of a 9th Circuit § 1983 civil rights case. The officers were entitled to qualified immunity because an officer could reasonably believe it was necessary to make a warrantless entry of a home to make sure no violence occurred in the following circumstances. Officers investigated a rumor that a high school student had written a letter threatening to "shoot up" the school. When the officers went to the boy's home, no one answered the officers' knocks after they announced they were police. No one answered a call to the home phone. The boy's mother answered the officers' cell phone call, told them she and her son were inside the home, but then she hung up on them. Later the mother and son walked out of the house. The mother refused to allow the officers to discuss the threat matter inside the house. When an officer asked the mom whether there were any guns in the house, she immediately turned around and ran into the house. The officers followed her. The Court emphasized the circumstances should be analyzed in their entirety and without second-guessing officers. It didn't matter that the mom had a right to refuse to answer questions and to go into her house. It was objectively reasonable to think violence was imminent.

OK for Oklahoma to Increase Capital Defendant's Burden of Proving Mental Retardation

2012-01-26T09:18:00.001-07:00

Ochoa v. Workman, 2012 WL 130718 (Okl.) (Published) - In this Oklahoma capital case, it was not unreasonable for Oklahoma courts to approve the district court's instruction to the jury that it must determine whether the petitioner is currently mentally retarded, rather than was mentally retarded at the time of the offense. It was reasonable for the state to consider mental retardation to be a static concept. As such, the petitioner had a harder time proving his retardation because his IQ improved over time. The petitioner's Atkins procedural issues meet the stringent successive petition standards because they were based on Atkins, which was decided after he filed his first habeas petition. But the petitioner loses on the merits. He voluntarily chose to appear before the jury in prison garb. There was no evidence the jury saw the shock sleeve attached to the petitioner. It was not prejudicial enough that the jury heard the defendant had been convicted of some undisclosed type of crime.

Albuquerque's Attempt to Ban Sex Offenders Completely from Public Libraries Unconstitutional

2012-01-26T09:17:00.002-07:00

Doe v. City of Albuquerque, 2012 WL 164442 (1/20/12) (N.M.) (Published) - City's denial of library access to sex offenders struck down. The 10th strongly hinted it might approve such a denial if the record below was better. The city took the litigation strategy that, since the challenge was a facial one, it had no burden to show its ban was narrowly tailored and left open alternative channels of communication. So it refused to submit any evidence on those matters. The 10th said the presumption of constitutionality did not apply where the First Amendment was implicated. So it was not enough for the city to imagine a hypothetical scenario where the ban could be validly applied, as the city claimed. The 10th concluded by repeating the false notion that sex offenders have a high rate of recidivism and then saying: "our conclusion does not reflect a pronouncement on the ultimate legality or merit of the city's ban. We are sympathetic to the city's desire to ensure public libraries provide a safe, welcoming environment and can imagine an effort to restrict library access of sex offenders succeeding through a revised ordinance where the restriction satisfies the time, place and manner test." But the 10th reluctantly conceded it was constrained by the record to affirm overturning the ban

An important case regarding the categorical approach and defense counsel's concessions.

2012-01-26T09:16:00.000-07:00

U.S. v. Ventura-Perez, 2012 WL 130716 (1/18/12) (Col.) (Published) - Here the issue was whether the defendant was convicted of burglary of a dwelling under § 2L1.2's definition of crime of violence. A statute may be "divisible" and therefore appropriate for applying the modified categorical approach when the statute contains statutory phrases that cover several crimes, some of which are crimes of violence and some of which are not, even when the phrases are not in separate sections, subsections or paragraphs. In this case, the burglary statute referring to burglary of structures adapted for overnight accommodation is divisible from the further phrase "and each structure appurtenant to or connected with the structure," which could include a shed far from the dwelling. Defense counsel's answer of "yes, but . . ." in response to the court's question; "was there evidence in his guilty plea or in the charge that the structure involved was an apartment?" was a concession that the defendant had admitted in the plea colloquy that he had burglarized an apartment, which qualifies as a dwelling under § 2L1.2. It doesn't matter that there were no documents before the d. ct. establishing the offense was a burglary of an apartment. It also doesn't matter that appellate counsel submitted documents showing counsel's supposed concession was inaccurate. The 10th never heard of a reversal of a judgment because the d. ct. relied on inaccurate statements of counsel. "Courts could not function properly if concessions by counsel cannot be relied upon." To top it all off, in a footnote, the 10th says, even if a defendant technically does not qualify for a crime-of-violence enhancement because of the fortuity of the details of a statute's language, a d. ct. can upwardly vary based on the real facts of the prior offense. And the defendant did not qualify for a downward variance for differences in fast-track policy among districts because he did not show he would be eligible for fast-track treatment in another district.

2012-01-24T17:10:00.001-07:00

U.S. v. Games-Perez, -- F.3d --, 2012 WL 171873 (10th Cir. 1/23/12) (CO) - the district court properly denied Mr. Games-Perez's motion in limine claiming he did not know he was actually a felon while on probation for a felony offense and thus could not be convicted under § 922(g)(1) for felon in possession. Mr. Games-Perez pleaded guilty to felony attempted robbery and was to serve a 2-year term of probation, after which he would be allowed to withdraw his guilty plea and have the charges dismissed. The COA finds it was made clear to him that possession of a firearm would violate his probation and that he knew he was losing the benefit of his bargain when he picked up a gun while on probation. Thus his case falls under Capps and the only knowledge required was that the instrument possessed was a firearm.

Rhodes v. Judiscak, -- F.3d --, 2012 WL 171917 (10th Cir. 1/23/12) (NM) - Mr. Rhodes is denied the habeas relief he sought under § 2241--a declaration that his sentence was excessive--because he is no longer in prison. The COA lacked authority to grant Mr. Rhodes a shorter term of supervised release. Success by Mr. Rhodes in getting the declaration he wanted may or may not have aided him in a future petition seeking a shorter term of supervised release and thus the Tenth decides his petition is moot. It recognizes that there is conflicting circuit authority on this issue.

Attaching GPS Device to Car Is a Search, US Supreme Court Says

2012-01-23T11:22:00.001-07:00

US v. Jones: http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf The Court unanimously holds that the attaching a GPS device to a car and monitoring its movements for 28 days was a search. However, the "unanimous" court produced multiple opinions.
Scalia, joined by Roberts, Kennedy, Thomas and Sotomayor, go with an "original intent" rationale, stating: "It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted." Because the government trespassed on private property to install the device, it was a search. This does not do away with the Katz reasonable expectation of privacy test; that test augmented the common-law trespassory test that preceded it.
Sotomayor's concurrence addresses some of the search and seizure issues associated with electronic communications and media, noting that "More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."
Alito, with Ginsburg, Breyer and Kagan, would stick with the Katz expectation of privacy test. In their view, the problem was how long the government monitored the vehicle, saying that, in light of government failure to to enact statutes regulating GPS technology for government use, "The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated. Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U. S., at 281–282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy." Thus, I guess in the Alito, et al., view, if state and federal governments had laws in place saying that the government could monitor everyone for as long as they wanted whenever they wanted, there would be no reasonable expectation of privacy any more.

A few 10th Cir. cases, S. Ct. news and a note regarding the amendments to the 10th Circuit rules.

2012-01-11T16:47:00.001-07:00

First, the 10th:

U.S. v. Sunday, 2012 WL 11245 (1/4/12) (Wyo.) (unpub'd) - The 10th finds plain error reversal is warranted where the d. ct., as a supervised release condition, prohibited the defendant, who had been repairing computers for a living, from possessing a computer that was not authorized by the probation officer and imposed monitoring and surveillance conditions on any computer he came into contact with. The d. ct. did not make the findings required to justify an occupational restriction. The defendant committed some of his fraud through the use of a computer, but not primarily. Restrictions on computers, which are used for routine activities, should be the minimum possible to protect the public. The 10th cited favorably a 3rd circuit case that said a plainly erroneous supervised release condition will inevitably affect substantial rights under the 3rd prong of the plain error test. The 10th also directed the d. ct. to revisit its mental health evaluation and treatment conditions consistent with its decision in U.S. v. Mike, 632 F.3d 686 (10th Cir. 2011).

U.S. v. Robles, 2012 WL 29044 (1/6/12) (Kan.) (unpub'd) - Under plain error review [the defendant only contested whether his conduct constituted a violation of the law], the 10th says it is okay to designate a positive urine test for cocaine as a Grade B, not Grade A, violation because 21 U.S.C. § 844 would have raised the offense of possession of cocaine to a felony by virtue of the defendant's underlying federal conviction for cocaine distribution.

U.S. v. Ferguson, 2012 WL 29047 (1/6/12) (Ut.) (unpub'd) - Another preservation cautionary tale. Defense counsel's assertion before the d. ct. that a lab test showed some of the seized ecstasy pills weighed less than what the guidelines presumed they weighed was inconsequential because counsel presented no actual evidence in that regard. Attorneys' statements are not evidence.

S. Ct. News:

Florida v. Jardines, 2012 WL 28952 (1/6/12) - The S. Ct. grants cert on the issue whether the police must have probable cause before using a dog sniff at the front door of a suspected "grow house." The Fla. S. Ct. held the dog sniff was a search under the 4th Amendment. That decision may very well be in trouble.

Cash v. Maxwell, 2012 WL 33989 (1/9/12) - A rare denial of cert where the 9th granted a habeas petition prompts an angry dissent by Justice Scalia joined by Justice Thomas and a response by Justice Sotomayor by herself. The 9th granted relief because the state court's finding that there was no credible evidence a jailhouse informant lied at the petitioner's trial was unreasonable. The witness was "one of the most notorious jailhouse informants in the history of Los Angeles County." Justice Sotomayor described Justice Scalia's dissent as insisting it was possible the informant told the truth this one time, despite all his other false testimony. She noted cert review was only supposed to be for important questions of law, not to correct fact-based errors. She pointed out the 9th recognized the stringent AEDAP standard of review. Justice Scalia felt the 9th had not abided by that standard and that, besides, the 9th held there was a due process violation without requiring that the prosecution know the witness was lying. He complained that the S. Ct. has had to constantly rebuke the 9th in fact-bound cases because the 9th has repeatedly second-guessed state courts in habeas cases.

10th Circuit Rules:

The 10th Circuit has a new version of its rules that is much like its old rules. The only real change is that it has now incorporated in the rules its standing General Orders, such as its order regarding electronic filing.

2012-01-06T13:32:00.003-07:00

US v. Bryant, No. 11-7029, 1-5-12 (Okla) - Woman whose sister worked at a tribal casino as a cashier won 90 cents on a slot machine. Her sister paid her $4,000.91, which they split. They were indicted for embezzlement from the casino. Woman claimed that she did not violate the statute (18 USC 1168) prohibiting employees of tribal casinos from stealing from them, and that the tribe was not the USA, so she didn’t steal anything from the USA. Held: (1) woman was guilty of aiding and abetting her sister, who did work for the casino, so she was liable as a principal; (2) the casino sits on territory subject to the jurisdiction of the United States, so the offense was “plainly” against the USA; and (3) fact that she could have been prosecuted under a different statute makes no difference, and provides no basis for invoking the rule of lenity.

2012-01-06T13:32:00.001-07:00

US v. Lamirand, No. 11-6033, 1/5/12 (Okla) - Defendant whose supervised release was revoked was sentenced to thirty days in prison, followed by a new term of supervised release of six months, violated supervised release conditions again. This time the court sentenced him to a year and a day in prison. Defendant claimed that he could only be sent to prison for six months. Wrong. He had been convicted of a Class D felony (pwid pot with a five-year max), so 18 USC § 3583 authorized a prison term of up to two years. The length of the supervised release term was irrelevant.

Defense Win: Appeal Waiver Did Not Preclude Challenge to Supervised Release Conditions; Condition was Unjustified

2012-01-05T08:48:00.001-07:00

U.S. v. Lonjose, 2011 WL 6811038 (12/28/11) (N.M.) (Published) - A a defense rare victory in the 10th on appeal waiver and supervised release condition issues.

First, the 10th ruled the standard appeal waiver did not apply to an appeal of a modification of supervised release conditions. The waiver only applied to the right to appeal the initial judgment. The modification procedure is a distinct post-conviction proceeding, like a § 3582(c) proceeding, which creates a new right to appeal. We'll see if this ruling prompts the government to devise a new appeal waiver, especially given a footnote which states that more precise waivers have been found to waive post-conviction appeals.

Second, the record did not unambiguously support a finding of compelling circumstances that the defendant was a danger to his 6-year-old son so as to justify interference with the right to familial associations by banning contact with his son and other minor male family members, absent written permission from the probation officer. That the defendant had sexually abused underage girls did not show he was a danger to underage boys. That the defendant could contact his son with the probation office's permission and that the district court told the probation office to "keep a close eye so that the defendant could have contact at the earliest opportunity" did not change the fact that the condition impermissibly infringed on the defendant's ability to freely associate with his family.

On Rehearing, Tenth Finds New Basis To Find the Escape is a Crime of Violence

2012-01-05T08:47:00.001-07:00

U.S. v. Koufos, 2011 WL 6778133 (12/27/11) (N.M.) (Published) - The good news: the 10th actually grants a rehearing petition for this previously-reported case where the 10th had relied on facts, contrary to the categorical approach, to find the defendant's escape to fit within the riskiness residual clause of the § 4B1.2(a)(2) crime-of-violence definition.

The bad news: the 10th chooses a new ground to find the defendant's escape to be a crime of violence. The 10th decides the defendant violated the portion of 18 U.S.C. § 751(a) that prohibits "escape from the custody of an officer or employee of the U.S. pursuant to a lawful arrest," even though no judicial document ever mentioned this portion of the statute, based on the information's allegation that the defendant was arrested and taken to a federal courthouse for arraignment. The 10th holds, in agreement with a dissenting 6th Circuit judge, that that kind of offense requires affirmative action and likely poses a risk to the law enforcement officers and the public at large. The 10th notes the Sentencing Commission's stats cited in Chambers that indicate 15.4% of escapes from law enforcement custody resulted in injury.

Exclusion of Medical Necessity Defense to Charge of Failing to Report to BOP Upheld

2012-01-05T08:45:00.000-07:00

U.S. v. Doles, 2011 WL 6880779 (12/30/11) (Wyo.) (unpub'd) - The 10th upholds the refusal to admit evidence to support a medical necessity defense to a charge of failure to report to BOP following sentencing. The 10th says a BOP letter acknowledging the defendant's serious medical issues and stating it would be able to provide the care he required demonstrated the defendant was not faced with an imminent harm involving a real risk of death or serious bodily injury. Because, if you can't believe what the BOP says, who can you believe? And the defendant was not entitled to a good faith instruction, despite his contention he believed his only chance to challenge his illegal conviction was to leave the country and make a documentary film through which he could point out his conviction's illegality. The defendant's contention did not negate his willful and voluntary decision not to report.

Unpublished Decisions

2012-01-04T10:09:00.001-07:00

U.S. v Aispuro-Aristegui, 2011 WL 6739433 (12/23/11) (N.M.) (unpub'd) - Of most interest, the 10th indicates it has problems with DEA Agent Perry's credibility even if our district judges don't. In a footnote, it says, although it must view the agent's testimony in the light most favorable to the denial of the suppression motion, it previously raised serious questions about the agent's veracity in U.S. v. Rangel, 519 F.3d 1258 (2008). The 10th goes on to express disappointment that over two years later the Rangel matter is still under investigation. The 10th holds that the officers could reasonably believe an arrested accomplice's statement that the defendant arriving to pick him up at the bus station was going to pay the arrestee for delivering his shoes containing heroin. The arrestee's possession of valuable heroin, his lack of luggage, the defendant's arrival in response to the defendant's call and the agent's experience corroborated the arrestee's claim.

U.S. v. Freeman, 2011 WL 6394538 (12/21/11) (Okl.) (unpub'd) - The district court was not required to give an accomplice instruction where the accomplices' testimony was corroborated by phone records and recordings of the defendant's phone calls. And for appellate types, in a footnote, the 10th complains that the defendant only devotes one sentence to Brady while arguing the government violated Rule 16's disclosure requirements regarding an agent's showing to witnesses a photo of an accomplice's boyfriend as a possible suspect. The 10th concluded any violation did not warrant a mistrial, since the evidence was revealed during trial and the defense was able to cross about it.

U.S. v. Moser, 2011 WL 6318956 (12/19/11) (Kan.) (unpub'd) - When concealment of assets occurs after a bankruptcy trustee is appointed, each separate act of concealment is a separate violation of 18 U.S.C. § 152. This was true here even though some of the concealing was with respect to the same parcel of land. The defendant made separate decisions to conceal additional agreements relating to the property.

Doyle v. Jones, 2011 WL 6318959 (12/19/11) (Okl. 12/19/11) (Okl.) (unpub'd) - It was not misadvice for counsel to tell the defendant she "could beat the case," which prompted the defendant to go to trial, instead of taking a plea offer. Counsel did not say she "would beat the case." "Could beat the case" might refer to a mere possibility of success.

Filing of Administrative Claim Necessary Before Filing 41(g) Motion

2012-01-04T10:08:00.000-07:00

U.S. v. Shigematsu, 2011 WL 6358525 (12/20/11) (Okl.) (Published) - Because the defendant failed to file an administrative claim to contest the forfeiture of the cash, the district court lacked jurisdiction to hear the defendant's Rule 41(g) motion for return of property.

All BOP Records are Law Enforcement Records Under FOIA

2012-01-04T10:06:00.001-07:00

Jordan v. U.S. DOJ, 2011 WL 6739410 (12/23/11) (Col.) (Published) - The Freedom of Information Act's reference to records created for "law enforcement purposes" refers to all records of the Bureau of Prisons. The BOP is a law enforcement agency since its primary purpose is confining prisoners and preventing escape, which is a crime. Consequently, all its records are per se exempt from disclosure if it can show disclosure would cause one of the harms listed in 5 U.S.C. § 552(b)(7)(A) - (F). Here 7F applies with respect to the names of Supermax staff members because release of the names could endanger the staff and there is no indication BOP releases the names to the general public, but not inmates, such as the plaintiff. And copies of the plaintiff's mail that BOP copied falls under Exemption 7E because its disclosure could reveal information about techniques and procedures that could be used to circumvent the staff's efforts. For similar reasons, also exempt was the portion of the plaintiff's psychological records that advised all staff regarding appropriate actions to take regarding the plaintiff, "a dangerous prisoner with a history of threatening staff."

This case also includes an interesting discussion regarding why it's okay to affirm a judgment on a ground different than that relied upon by the district court. Here, the BOP argued below for a similar, but not identical, ground as a basis for the exemption. That was good enough to allow affirmance on the basis of Exemption 7E. Finally, BOP regulations permitted the BOP to withhold an inmate's medical records containing subjective evaluations of the medical staff.

OK for Officers ot Create Exigent Circumstances Justifying Entry

2012-01-04T10:04:00.000-07:00

U.S. v. Hendrix, 2011 WL 6358522 (12/20/11) (Okl.) (Published) - A demonstration of the consequences of the recent decision in Kentucky v. King, 131 S. Ct. 1849 (2011). Informant said the defendant was selling meth from room 327 of a motel in town. An officer knocked on the door eventually identifying himself as an officer in response to an inquiry from a woman inside the room. Officers hear people moving, doors opening and closing and a toilet flushing. These sounds indicated people were trying to destroy evidence, so in that exigent circumstance officers entered the room. When they entered, the officers had probable cause based on the confidential informant's self-inculpatory statements and provision of various details, the confirmatory facts that the informant had meth on his person and the motel had a room 327 that was occupied, and the commotion following the officer's announcement of his identity. Under King, it was okay that the officers created the exigency because they did not threaten to engage in conduct that violated the 4th Amendment or threaten to enter without permission.

Divided Panel Rejects Civil Rights Claims Regarding Improper Warrant, Search; Remands Immunity Issue

2012-01-04T10:01:00.002-07:00

Kerns v. Bader, 2011 WL 6367728 (12/20/11) (N.M,) (Published) - The 10th, omitting from the arrest warrant affidavit the inaccurate information that the bullet fragments from the helicopter that was shot down could have come from the defendant's rifle and that the shooter could have been in the defendant's backyard, found probable cause to arrest the defendant where: the defendant reported the downing of the helicopter, made some "questionable" statements, told police he was a trained military marksman and bragged to them the helicopter made a great target; a casing from the defendant's rifle was found in the defendant's trash concealed by fresh tape; and he led officers on a high speed chase when the police followed him in an unmarked car. That the shooter could not have been in the defendant's backyard at the time of the shooting would only undermine probable cause if the defendant had been in his backyard at the time. That the defendant's rifle could not have been the firearm involved in the shooting was meaningless because nothing in the probable cause analysis depends on the discovery of the weapon responsible for the crime.
The 10th also holds that it was not clearly established the 4th Amendment or due process prohibits officers from asking for and obtaining medical records from third parties without a warrant or even reasonable suspicion. The 10th distinguished Ferguson v. City of Charleston, 532 U.S. 67 (2001), because that case involved taking urine samples, not obtaining medical records. The 10th distinguished due process cases because they involved officer disclosure of private records to the public, not obtaining information for law enforcement use.
The 10th decided to remand for consideration of the qualified immunity question regarding whether there were exigent circumstances to justify officers' entry into the plaintiff's home. The 10th thought the district court had not decided that question.
In his dissent, Judge Holloway was appalled by all of the majority's decisions. He felt the hypothetical affidavit resulting from putting in accurate information was self-contradictory and insufficient to establish probable cause. He concluded the reason there were no cases with facts exactly on point regarding officers getting medical records without sufficient grounds was because it was so obvious medical records are protected by the 4th Amendment no one had argued otherwise. He also thought the district court had addressed the qualified immunity issue regarding the officers' illegal entry and made factual findings that could not be reviewed on appeal at this summary-judgment stage of the proceedings.

2012-01-03T17:12:00.001-07:00

Kersh v. Mueller, 2011 WL 6145353 (12/12/11) (Col.) (unpub'd) - Without any contradictory evidence, The Tenth finds "implausible" the plaintiff's contention that the FBI director was liable for failing to investigate his complaint that his relatives transported him to outer space when he was 13. Apparently, the FBI thought it had no jurisdiction over interplanetary kidnaping. Another loophole we may be able to exploit some day.

2012-01-03T17:10:00.001-07:00

U.S. v. Reeves, 2011 WL 6145343 (12/12/11) (Col.) (unpub'd) - The probation officer was not improperly vindictive where, after the defendant challenged the terms of his proposed sex offender treatment contract submitted pursuant to a motion to modify supervised release conditions, the officer withdrew the modification motion and filed a motion to revoke supervised release based on a misdemeanor offense that the defendant committed prior to when the motion to modify was filed. The defendant ended up with a 10-month sentence. The 10th saw these series of events as akin to plea negotiations. A prosecutor has the right to file charges if negotiations are not going the way the prosecutor wants them to. And to top it off, the defendant's challenge to the sex offender contract was not ripe because the district court's sentence only imposed mandatory sex offender treatment, not the specific contract to which the defendant objected.

Another preservation cautionary tale.

2012-01-03T17:09:00.002-07:00

U.S. v. Seals, 2011 WL 6188699 (12/14/11) (Ut.) (unpub'd) - The defendant waived his right to challenge the district court's denial of his pretrial motion to dismiss under the Speedy Trial Act because he sought dismissal for different reasons below than he pressed on appeal. And in a footnote the 10th suggests that a defendant might lose his option to supplement the appeal record if he moves to supplement only after the government has observed in its answer brief that certain parts of the district court record are not in the appeal record.

Defense Attempts to Obtain Information, Testimony of Police Witnesses Stymied

2012-01-03T17:07:00.001-07:00

U.S. v. Embry, 2011 WL 6275934 (12/16/11) (Okl.) (unpub'd) - It was not against the interests of justice for the magistrate to refuse to order the government to produce personnel files and FBI-302's involving the two officers who claimed to see the defendant drop a gun. That the government and/or the officers had previously not been forthcoming about the identities of witnesses of the police encounter with the defendant did not establish a pattern of suppression that warranted the belief the government or the police must be hiding impeachment evidence.

The district court did not abuse its discretion when it ruled the defense would not be allowed to question one of the officers on direct about impeaching information that the officer was friends with, and engaged in independent investigation for, corrupt Tulsa officers. In three prior trials that ultimately bore no fruit for the government, the government had presented the officer's testimony in its case-in-chief. In the fourth trial, the government chose not to present that officer's testimony. The defense wanted to call the suspect officer to suggest he may have planted the gun. But a party may not call a witness as a means of impeaching him. A party can present extrinsic impeaching evidence on direct only if (1) the witness denies making a prior inconsistent statement; (2) a party already attacked the credibility of the witness by referring to specific instances of conduct or (3) the party calling the witness anticipates cross aimed at showing untruthfulness through specific-instances evidence. None of that was happening in this case.

Defendant's Letter Admitting Different Robbery Improperly Admitted, but Harmless.

2012-01-03T17:06:00.001-07:00

U.S. v. Vaughan, 2011 WL 6160215 (12/13/11) (Kan.) (unpub'd) - The district court abused its discretion when it admitted the defendant's letter apologizing for robbing a bank other than the bank involved in the indictment. The admission violated Rule 403. The letter did not develop any modus operandi similarities to establish identity, but there was a possibility the jury could have interpreted it as a confession to the charged robbery. The error was nonetheless harmless due to overwhelming evidence.

Tenth Voices Antagonism to Ninth Circuit Decision that Held a Within-guidelines Sentence to be Unreasonable

2012-01-03T17:04:00.001-07:00

U.S. v. Carrillo-Rodriguez, 2011 WL 6242550 (12/15/11) (Col.) (unpub'd) - The 10th exhibits a strong antagonism for the 9th Circuit's decision in U.S. v. Vasquez-Alcarez, 647 F.3d 973 (9th Cir. 2011), holding a within-guideline-range reentry sentence substantively unreasonable. The 10th says its approach to substantive reasonableness issues "differs in significant ways" from the 9th's, noting only one difference: the 10th applies a presumption of reasonableness to within-guideline-range sentences. Nonetheless, the 10th says that "even assuming for the sake of argument Amezcua-Vasquez is persuasive," the defendant's circumstances differed from those of Mr. Amezcua-Vasquez in that his last offense was immediately prior to his reentry conviction , [as opposed to 7 years before], he twice committed the intentional property crime of theft, [as opposed to never harming anyone for 20 years], the defendant had a chance to demonstrate his relative harmlessness because he was not arrested for years after his reentry, [as opposed to being arrested during an attempted reentry], and the defendant's deportable offense was a deportable offense at the time he committed it, [as opposed to an offense that was declared an aggravated felony after commission].

Facially Inflammatory Rebuttal Argument by Gov't Was Not Improper; Obstruction Guideline Applies to Indirect Threats

2012-01-03T17:00:00.001-07:00

U.S. v. Fleming, 2011 WL 6188749 (12/14/11) (Wyo.) (Published) - After defense counsel argued the government witnesses were unreliable drug dealers with long records, the prosecutor argued that s/he wished s/he could bring nuns and priests to testify, but that wasn't possible, the witnesses were going to bring meth to pollute the community with meth's poison and take money back to Denver, so they don't have real jobs." The 10th says that read in isolation this might seem like an attempt to inflame the jury to obtain a verdict to protect the community, but it was actually a proper response to the defense's argument.

And the prosecutor's statement that "it's ironic to read a prosecution witness's felonies when she and the defendant have been friends for 30 years" may or may not have asked the jury to infer guilt by association. But the defendant did not show it affected the verdict under plain error review, given the judge's cautionary instructions and the small portion of the closing taken up by the comment.

Agreeing with several circuits and disagreeing with the 4th Circuit, the 10th holds that attempting to threaten or influence a witness through a third-party intermediary may constitute a substantial step sufficient to justify application of the obstruction-of-justice enhancement. § 3C1.1 applies to indirect threats. In this case, the district court did not clearly err when it found the defendant's statement to a jail visitor: "Tell [a potential government witness] not to be talking to anybody about this stuff" was meant to suppress testimony, not to advise the witness of her right to an attorney during police questioning.

Harsher Obstruction Guideline Applied to Criminal Contempt Conviction

2012-01-03T16:59:00.000-07:00

U.S. v. Halladay, 2011 WL 6276000 (12/16/11) (Ut.) (Published) - The 10th acknowledges a conflict within the circuit as to whether a district court's selection of a most-analogous guideline is reviewed de novo or for clear error. The standard of review didn't matter here. The harsher obstruction-of-justice guidelines, § 2J1.2, rather than the failure-to-appear-by-material-witness guidelines, § 2J1.5, applied where the defendant was convicted of criminal contempt for refusing to testify before a grand jury investigating environmentalists' attacks on mink farms. It didn't matter that the defendant refused to testify as a matter of conscience. All that mattered was that the district court found, based on sufficient evidence, that he intended to impede prosecution. The defendant's refusal to testify over a long period and his statements about "resisting" the grand jury made his conduct more serious than just failing to appear. The 10-month sentence was substantively reasonable. His refusal to cooperate for animal rights reasons was not meaningfully different from another defendant's refusal to cooperate based on objections to paying taxes.

Officer Allowed to Reach Into Pockets During Pat-Down Without Making Certain Objects are Weapons

2012-01-03T16:57:00.000-07:00

U.S. v. Rochin, 2011 WL 6160499 (12/13/11) (N.M.) (Published) - The 10th holds that, during a legitimate pat-down search, an officer had the right to take out from the defendant's pockets "long and hard" objects [no jokes please] that the officer could not, and the defendant did not, identify as weapons. It was enough that "an objectively reasonable officer could have feared the objects might be used as instruments of assault." The objects turned out to be glass pipes containing drugs. The 10th rejected the defendant's contention that the officer should have continued to explore the shapes to see if the objects were weapons. But, the 10th declared "the 4th Amendment is not a game of blind man's bluff, requiring the officer to risk his safety or the safety of others while fishing around in the suspect's pockets." The 4th doesn't require "such potentially reckless punctiliousness."

Leaving U.S. Still Requires SORNA Registration

2012-01-03T14:44:00.002-07:00

U.S. v. Murphy, -- F.3d --, 2011 WL 6739417 (10th Cir. 12/23/11) - Mr. Murphy's SORNA conviction is affirmed. After he was convicted of sex offenses in Utah, Murphy escaped from a SLC halfway house and traveled to Belize without reporting any change. The COA rejects Murphy's argument that because he no longer lived, worked, or studied in the U.S., he was not required to notify Utah of his change of status. A permanent abandonment of an abode constitutes a change of residence that necessitates reporting regardless of whether there has been a formal move to a new place. Mr. Murphy was legally obligated to update his registration in Utah within three days of when he left the halfway house.

Lucero dissents, concluding that a SORNA loophole applies to Murphy. Because Murphy left the state within hours of absconding from the halfway house, there was no point in time while he was in Utah at which he was required to report a change of residence there. And since Belize is not a jurisdiction covered under SORNA, Murphy could not comply with SORNA by reporting his new address to authorities in Belize.

As-Applied Challenge to SORNA Rejected

2012-01-03T14:44:00.001-07:00

U.S. v. Carel, -- F.3d --, 2011 WL 6880674 (10th Cir. 12/30/11) (CO) - the Tenth rejects Mr. Carel's as-applied challenge to the constitutionality of the SORNA registration requirement. Congress has ample authority to criminalize sexual abuse of a minor in Indian country. Because the SORNA registration statute is rationally related to the effectuation of the criminal statute, Congress was empowered to enact it by the Necessary and Proper Clause.

2011-12-20T15:08:00.001-07:00

U.S. v. Snow, -- F.3d --, 2011 WL 6318850 (10th Cir. 12/19/11) - the Tenth affirms Mr. Snow's sentence for wire fraud and conspiracy to commit wire fraud, which involved more than forty home loans through at least twelve different financial institutions. The district court used appropriate methodology to calculate the amount of the loss and properly applied two-level enhancements for role in the offense and level of sophistication. Where the properties in question had been sold, the net loss was properly calculated by subtracting the sales price from the outstanding balance on the loan. On one property, on which no actual sales price was available, the district court properly estimated the fair market value of the property loss based on the certified assessor's current valuation of the property. The two-level enhancement under § 3B1.1(c) for being an organizer or leader of the mortgage fraud scheme did not require that Mr. Snow led others. He qualified as an "organizer" by exercising decision-making authority and actively participating in planning or organizing all stages of the scheme; he provided cash and knowledge and coordinated and oversaw the implementation of the conspiracy. The two-level enhancement under § 2B1.1(b)(9)(C) for conduct through sophisticated means applied because Mr. Snow orchestrated a vast and complex fraud scheme and also demonstrated complex conduct in concealing the scheme.

2011-12-09T17:00:00.001-07:00

Several 10th Circuit cases and a cert grant. First the 10th:

U.S. v. Lopez-Avila, 2011 WL 6008982 (Col.) (Published) - An actual preservation ruling in favor of the defendant! The defendant did not have to renew his argument for a downward variance after the judge pronounced sentence. By raising the fast-track argument in his motion to vary, he preserved the argument that the d. ct. erred when the d. ct. held it had no discretion to vary based on disparities caused by the lack of a fast-track program. Plain error review only applies to alleged procedural errors at sentencing that were not properly raised in d. ct. U.S. v. Lopez-Macias,2011 WL 5310622 (10th Cir. 2011), established the d. ct. had discretion to vary based on fast-track disparities. But because the defendant only made a generalized argument and did not show he would have received a fast-track offer in another district, a variance was not justified.

U.S. v. Randall, 2011 WL 6008983 (12/2/11) (Kan.) (Published) - The 10th elects to consider an untimely appeal of a denial of a motion to reconsider the rejection of a § 3582(c)(2) motion. The government did not raise the untimeliness and the pro se defendant said he didn't receive the appealed order until 14 days after it was entered. Motions to reconsider are proper in criminal prosecutions. [I don't think this applies to sentencings, see Fed. R. Crim. P. 35(a)]. But the motion had to be filed within the time for appeal. The defendant did not file his motion in time. So he's out of luck.

U.S. v. Irving, 2011 WL 5925315 (11/29/11) (Okl.) (Published) - The 10th already decided many of the same issues in the co-defendant's case, U.S. v. Washington, 653 F.3d 1251 (2011). It finds those issues must be decided the same way under the law of the case doctrine, which precludes codefendants from relitigating an already-decided legal issue. There was sufficient evidence that the defendant possessed crack with the intent to distribute it where the controlled buy with a CI adhered to established protocol, even though the surveilling video did not show any exchange of drugs for money and the defendant had an "elaborate" explanation for what happened.
There was sufficient evidence the defendant took a substantial step toward killing a witness. The 10th acknowledged it was open to question whether the 10th could take into account the actions of the co-defendant - the would-be killer - in deciding if the defendant took a substantial step. Here the evidence showed the defendant had gone beyond "mere abstract talk" in hiring a killer. He reached a concrete agreement, settled on a definite price, the form of the payment and who would get the murder weapon,. he also undertook tangible acts that displayed a real effort to ensure the success of the hit by putting up the money to get the coordinator of the hit out of jail. The emphasis should be on what had been done, not what was still left to be done, because we don't want to make it too hard for law enforcement to decide how long they have to wait before stopping the crime [which it encouraged].
The 10th notes the law regarding when a defendant can rely on the co-defendant's objections at trial to preserve the issue for the defendant and points out the 10th has yet to take a position on vicarious objections. But the 10th does not decide the question, instead assumes the defendant here preserved the evidence issue. The law of the case doctrine meant the 10th accepted that the d.ct. was wrong to exclude a defense witness from testifying based on a violation of the sequestration rule. But the 10th chooses not to apply that doctrine to its holding in Washington's case that the error was harmless. The 10th makes an independent judgment that the error was harmless as to Mr. Irving as well because the evidence of guilt was substantial and the excluded witness would not have been able to rehabilitate a defense witness. Evidence of the would-be-murder victim's involvement in the prosecution of the defendant in a prior drug case was intrinsic evidence not governed by Rule 404(b). It explained why the defendant wanted to kill the would-be-victim. To be intrinsic the evidence need not establish an element of the charged offense. Here it was enough that it showed the defendant's motive. The evidence did not violate Rule 403. Judge Hartz wrote a concurrence suggesting the 10th should abandon the intrinsic/extrinsic dichotomy. The difference is only significant in deciding whether the government must give notice under 404(b).

U.S. v. Abramson-Schmeiler, 2011 WL 5925582 (11/29/11) (Col.) (unpub'd) - The d. ct. abused its discretion when it prohibited the defendant's accountant from testifying that he did not believe the defendant under-reported her income on purpose. But the error was harmless because the accountant effectively conveyed to the jury his belief in her innocence. The defendant's testimony that she found 1 million dollars in cash in her house was not that credible.

U.S. v. Romero, 2011 WL 5925562 (11/29/11) (Col.) (unpub'd) - The 10th affirms an upward departure from 27 months at the top end of the range to 51 months due to prior uncounted tribal and old convictions. What is interesting [or maybe just a typo] is the 10th's statement that "we would not have reached the same determination." Usually the 10th will just say it may not have reached the same determination.

Ochoa v. Workman, 2011 WL 6000510 (12/1/11) (Okl.) (unpub'd) - Another Oklahoma capital case affirmed. It was okay for the state appellate court to decide the aggravating circumstance of the risk to more than one person outweighed the mitigating circumstances after finding the evidence did not support the jury's finding that the defendant was a continuing threat.

U.S. v. Worack, 2011 WL 6000710 (12/1/11) (Col.) (unpub'd) - An odd situation where the defendant tried to prove the corporation he formed was a sham and the government tried to prove it was real. If the corporation was real then the defendant did not personally receive the corporation's money until 2000 and 2001 for which years the government charged she filed false tax returns. There was sufficient evidence the corporation was real and so sufficient evidence to convict the defendant of the tax charges.

Cert Grant:

Reichle v. Howards, 2011 WL 3812626 (12/5/11) - The S. Ct. grants cert on a good § 1983 decision by the 10th. The 10th ruled the officers did not have qualified immunity for arresting the plaintiff in retaliation for exercising his first amendment right to walk up to Dick Cheyney and criticize the Iraq war. The question is whether the plaintiff could pursue a retaliation claim, even though the officers had probable cause to arrest the plaintiff for making a false statement about whether he touched the VP. There's a S.Ct. case that says probable cause neutralizes a claim for retaliatory prosecution. Interestingly, the plaintiff did not oppose the cert grant, saying "the First Amendment needs to be vindicated nationally."

2011-11-17T13:10:00.000-07:00

Brown v. Montoya, 2011 WL 5346064 (11/8/11) (N.M.) (Published) - It is a clearly established violation of procedural due process for a probation officer to wrongly direct a probationer to register as a sex offender and wrongly place him in the sex offender probation unit without a hearing and without proper notice. Due process is implicated where there is "stigma plus"---damage to reputation plus an alteration in legal status. In this case, there was stigma and either the requirement to register or the additional restrictions of being in a sex offender probation unit triggers due process protections. Here the probation officer claimed the plaintiff was subject to sex offender treatment under New Mexico law because he was convicted of false imprisonment of a minor. But there was absolutely no evidence that a minor was the victim of the plaintiff's offense. And the plaintiff adequately alleged the officer's state of mind as intentional and in reckless disregard of the plaintiff's constitutional rights. The 10th also held the plaintiff did not sufficiently allege that Joe Williams, the secretary of the department of corrections, was individually responsible for a policy that caused the due process violations.

Reedy v. Werholz, 2011 WL 5433798 (11/10/11) (Kan.) (Published) - The 10th finds there can be no legitimate penological interest in the prison forcing inmates who have life sentences without parole to keep 10% of funds received in a savings account so that the prisoner has funds when s/he is released. There is a valid interest for inmates who will be released some day. Unfortunately, while some of the non-lifers of the class action exhausted their administrative remedies, none of the lifers did. So everyone's out of luck.

U.S. v. Santos-Santos, 2011 WL 5433730 (11/10/11) (Colo.) (unpub'd) - California's assault with a dangerous weapon offense is a "crime of violence" under § 2L1.2. The mens rea is sufficient to have as an element the use of force, where a California S. Ct. decision described the mens rea as being aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. The decision went on to explain the intent was a general intent, which the 10th interpreted to mean it was not a lesser mens rea of recklessness. The 10th stressed the acts that constitute the assault must be intentional. Battery would be the "natural but unfulfilled" consequence of the acts.

U.S. v. Salazar, 2011 WL 5383928 (11/9/11) (Kan.) (unpub'd) - The 10th finds the d. ct. did consider the defendant's leniency arguments, even though the d. ct. said: "You know there are so many things I would have considered had he not absconded. I might have considered other things. But once he broke his promise to me, I would never consider a downward variance under those circumstances."

Exhaustion Req't May Be Excused for Prisoner Who Fears Retaliation

2011-11-14T09:43:00.000-07:00

Tucker v. Grover, 2011 WL 5346038, No. 10-1353 (Tenth Cir. Nov. 8, 2011) (published): state inmate filed a 1983 lawsuit against prison officials, claiming he was beaten in retaliation for complaining. The district court granted summary judgment on the grounds the plaintiff failed to exhaust administrative remedies. The COA reversed. A plaintiff with an objectively reasonable fear of retaliation from prison officials may show that administrative remedies were unavailable to him and thereby be excused from the exhaustion requirement. Because there were disputed issues of fact, the cause was reversed and remanded.

Failed Attempt to Withdraw Guilty Plea Results in Serious Sentence Enhancement

2011-11-14T09:41:00.001-07:00

US v. Armendariz-Soto, 2011 WL 5346068 , No. 10-3307 (10th Cir. November 8, 2011) (published): Tenth holds that the district court does not need to allow a defendant to withdraw his guilty plea when the defendant's alleged basis for withdrawal is a lie. The defendant had pled guilty to various gun and drug charges. He wanted to withdraw his plea of guilty and claimed his attorney promised him a 15-year sentence. Main problem was that, in the colloquy, he repeatedly said no specific sentence was promised to him and when he tried to claim his attorney had told him to just say "yes" to all the questions, his attorney swore to the contrary. End result: the court found the defendant not credible, enhanced him for obstruction, denied him acceptance, and sentenced him to the low end of the 420-life guideline range. The COA found no reason to find that the district court's findings were erroneous, and further refused to find that the sentence was either procedurally or substantively unreasonable. This is a good case to show your client who may want to withdraw a guilty plea for no good reason.

Former ClearOne Exec's Perjury Conviction Affirmed

2011-11-14T09:40:00.000-07:00

US v. Strohm, 2011 WL 5346069 , No. 10-4101 (10th Cir. November 8, 2011) (published): former executive of ClearOne Communications appealed her conviction for perjury. Conviction affirmed. She had been asked if she was involved in a particular sale by ClearOne that was the focus of an SEC investigation. She said she was not and approximated that she learned of the sale before or after the end of the company's fiscal year. The Court found that the questions were not ambiguous, there was sufficient evidence that she knowingly made the false statements, and the testimony was material because it involved a transaction that the SEC believed demonstrated the company's irregular accounting.

Tenth Circuit 2012 Calendar

2011-11-10T13:53:00.000-07:00

The Tenth Circuit's 2012 calendar and oral argument sessions are available here.

Fee Schedule Changes Effective November 1st, 2011

2011-11-10T13:51:00.000-07:00

The Tenth Circuit has announced changes to the miscellaneous fee schedule. An announcement states:

At its September 2011 session, the Judicial Conference of the United States approved changes to the miscellaneous fee schedule for the Courts of Appeal. These changes will take effect on November 1st, 2011, and will apply to all transactions occurring on or after that date. The new fees will be as follows:
Item Amount
Record Search $30.00
Certification $11.00
Copy of Audio Recording $30.00
Record Reproduction (by the clerk's office) $83.00
Record Retrieval Fee $53.00
Returned Check Fee $53.00
Attorney Admission Fee
(please note, however, that the total admission fee for the 10th Circuit Bar will remain $200--the increase noted here is to the national portion of the fee--at this time the 10th Circuit will not increase the total fee) $176.00
Certificate of Good Standing $18.00

2011-11-10T11:47:00.000-07:00

Koch v. City of Dell City, 2011 WL 5176164 (11/2/11) (Okl.) (Published) - The 10th affirms granting qualified immunity to an officer, while raising some interesting questions regarding a detainee's right to refuse to answer questions. Ultimately, the 10th rules it was not clearly established the plaintiff had a right to refuse to answer the officer's questions while detained during a Terry stop. The officer's encounter with the plaintiff became an investigative detention where the officer went to the plaintiff's home to check on the welfare of an elderly woman pursuant to a court "pick-up" order, engaged the plaintiff to check on the woman and to try to determine the woman's whereabouts. It was not clear that the plaintiff had a right to refuse to answer the officer's questions regarding the woman's whereabouts under the 4th, 1st or 5th amendments, once she was validly stopped pursuant to Terry. Maybe the 4th might allow a requirement to answer questions on other topics in addition to identity. There might not be a 1st amendment right not to speak during a Terry stop. While the officer may have made it impossible for the plaintiff to invoke her right to remain silent under the 5th, the 5th right may only be a trial right. So, here, a reasonable officer could believe the plaintiff was withholding information she was lawfully required to convey regarding the woman's whereabouts. Consequently there was probable cause to arrest the plaintiff for obstructing an officer when she refused to reveal the woman's location. The plaintiff's superficial abrasions and numbness in her wrist and forearm were de minimis injuries that did not qualify her for relief due to the manner she got handcuffed.
On the good news side, the officer did not have probable cause to arrest for obstruction based on the plaintiff telling the officer to get off her property and that he should talk to her attorney. The officer had no way of knowing the attorney was ignorant of the missing woman's whereabouts.

Milligan v. Archuleta, 2011 WL 5148966 (11/1/11) (Col.) (Published) - The d. ct. erred in dismissing the plaintiff prisoner's retaliation claim. While the termination of his employment did not trigger due process protection, it could still constitute a First Amendment violation if the prisoner lost his job in retaliation for filing a grievance. And the d. ct. erred in not allowing the plaintiff to amend his petition to show his classification as an escape risk lacked a rational relationship to a legitimate penological interest.

U.S. v. Molina-Chavez, 2011 WL 5248226 (11/4/11) (Okl.) (unpub'd) - The rule of lenity does not apply to the construction of an order of supervised release. The N.M. order that both prohibited the defendant from reentering the U.S. and required him to remain within the N.M. district did not constitute a "prior authorization" to reenter the U.S. It was not "express consent" required by 8 U.S.C. § 1326(a)(2).

U.S. v. Lehi, 2011 WL 5222885 (11/3/11) (Col.) (unpub'd) - Spitting constitutes "physical contact" under § 111(a) that raises a simple assault on a federal officer to a felony. Spitting on a person is an offensive touching that is not a de minimis form of physical contact. This might be good news for somebody when the government tries to use a § 111(a) offense as a predicate crime of violence.

U.S. v. Sussman, 2011 WL 5148967 (11/1/11) (Col.) (unpub'd) - A challenge to the government's usual delay prosecuting supervised release violations until the defendant completely serves his state sentence goes by the wayside. The fact that the federal detainer caused worsening of the defendant's conditions in the state facility did not trigger due process protections. Fed. R. Crim. P. 32.1's requirement to take an alleged supervised release violator promptly to a magistrate judge did not apply until the defendant was in federal custody. He was not in "technical" federal custody when the detainer was filed.

Hooper v. Workman, 2011 WL 5148969 (11/1/11) (Okl.) (unpub'd) - The 10th keeps the Okl. death train rolling. The 10th refuses to overturn a finding that the petitioner was competent when he waived his right to challenge his death sentence. At the time of the waiver, he was depressed, but not taking any medications. After he started taking antidepressants, he decided he wanted to challenge his sentence. Too late. His prior waiver was perfectly valid. Just because he changed his mind after meds doesn't mean he was incompetent without the meds.

2011-11-08T17:11:00.001-07:00

U.S. v. Kort, 2011 WL 5310586 (10th Cir. 11/7/11) (OK)(unpub.) - district court did not impermissibly determine that Mr. Kort was entitled only to a four-level reduction for his substantial assistance, as the government' recommended, and did not err in concluding that the government was in the best position to judge the level of reduction warranted.

Sentencing Court May Consider Disparity with Fast-Track Districts in Reentry Cases

2011-11-08T17:10:00.000-07:00

U.S. v. Lopez-Macias, -- F.3d --, 2011 WL 5310622 (10th Cir. 11/7/11) (CO) - The district court has discretion to vary in sentencing for immigration offenses in non-fast-track districts based on fast-track sentencing disparity. The defendant must initially demonstrate entitlement to a variance in light of how defendants convicted of similar offenses are sentenced in fast-track districts.

Companion RICO Cases Address Jury Instruction Issues

2011-11-07T16:49:00.000-07:00

US v. Knight, 2011 WL 5148802 (10th Cir. Nov. 1, 2011) (published): Applying plain error standard, Tenth Circuit rejects challenge to jury instructions in racketeering case involving a conspiracy to sell illegal drugs by Crips members. The district court had relied on H.J. Inc. v. Northwestern Bell Telephone Co., 492 US 229 250 (1989), in defining the "relatedness" element of racketeering. The Tenth finds no plain error because no there is no single test for determining whether predicate RICO acts are related and where the law is unsettled, the decision to instruct one way or another is not plain. Nonetheless, "the more prudent course for district courts is to continue to adhere" to the pattern instructions. The COA also rejected the argument that the district court committed plain error by not submitting an instruction on constructive possession, where the defendant had not requested such an instruction.

US v. Randall, 2011 WL 5148862 (10th Cir. 2011) (published): a companion case to US v. Knight. Mr. Randall was charged with one count of conspiracy to commit a RICO violation, based on drug activity by Crips members. He sought to have the district court present an instruction on withdrawal from the conspiracy. Such an instruction was not warranted based on evidence that Mr. Randall had once told a prison official that he was no longer part of a gang. The "vague statement" -- which did not even include information about which gang or what illegal activity might be involved -- did not "rise to the level required for withdrawing from a conspiracy." "Insofar as we can infer, this barebones statement is nothing more than the run of the mill statement that prisoners often make to prison officials to convince them that they no longer present a threat to society and so should get a break. That is not enough." Alternatively, Mr. Randall might have told other gang members he had withdrawn, but there was no evidence that he had done so. As a cautionary note, the Court observed in a footnote that it could have denied this issue based solely on the grounds that Mr. Randall did not include the jury instruction he appealed in the record.
Additionally, the district court did not commit plain error by failing to instruct the jury that it had to be unanimous as to the specific predicate acts that supported the RICO charge. The Court joined those circuits that have held that "or a charge of RICO conspiracy, a jury need only be unanimous as to the types of predicate racketeering acts that the defendant agreed to commit, not to the specific predicate acts themselves."

A few 10th Circuit cases, a S. Ct. habeas decision and review of some of the new guideline amendments effective today.

2011-11-01T17:27:00.001-06:00

First, the 10th:

U.S. v. Villalobos-Varela, 2011 WL 5110247 (10/28/11) (N.M.) (unpub'd) - The 10th once again concludes that Colorado menacing is a crime of violence under § 2L1.2. It doesn't matter that Colorado menacing does not require the victim to be aware of the threat to her/his safety. A victim need not perceive a threat for the defendant's offense to have as an element the threatened use of physical force.

U.S. v. Ragland, 2011 WL 5041913 (10/25/11) (Kan.) (unpub'd) - While the d. ct. could have granted a variance based on the fraud guidelines' irrational obsession with the amount of loss, the 10th will not find a sentence substantively unreasonable based on policy objections to a guideline.

U.S. v. Rodriguez-Padilla, 2011 WL 5041917 (10/25/11) (Utah) (unpub'd) - To receive a mitigating role adjustment, a defendant must be substantially less culpable in comparison with both other participants in the specific criminal activity and the average participant in general. The d. ct. did not clearly err when it refused to award such an adjustment. The defendant's offense level was determined solely on the amount of drugs he personally transported. Tthe longer history of large drug trafficking by his co-conspirators did not require finding him to be a minor participant.

U.S. v. Garcia, 2011 WL 5027544 (10/24/11) (Okl.) (unpub'd) - It was okay for the government to introduce at a hearing on its appeal of a magistrate judge's release order, pursuant to 18 U.S.C. § 3145, evidence it could have, but didn't, present at the initial detention hearing. The 10th distinguishes this case from cases where a defendant was not allowed to present that kind of evidence where the defendants sought to reopen detention hearings pursuant to § 3142(f).

Miller v. Arbogast, 2011 WL 5042516 (10/25/11) (N.M.) (unpub'd) - In a civil rights case involving the infamous 1999 murder of Girly Hossencofft, the 10th affirms summary judgment dismissal of a malicious prosecution claim. There was probable cause to arrest based on a co-participant telling her cellmate the plaintiff was '"with us" and did most of the work in killing the victim. The plaintiff's alibi evidence was not comprehensive enough to render the co-participant's statement incredible. Just because another witness lied once doesn't mean all of his statements are not believable for probable-cause purposes. The failure of the grand jury to indict does not vitiate probable cause because, among other reasons, the plaintiff was arrested after new post-grand-jury evidence came to light.

U.S. v. Dewitt, 2011 WL 5041919 (10/25/11) (Okl.) (unpub'd) - The defendant did not qualify for the sporting purposes exception under § 2K2.1(b)(2) because she possessed the gun while hunting illegally. She was "headlighting," hunting from a motorized vehicle and hunting out-of-season.

Thompson v. Milyard, 2011 WL 5036009 (10/24/11) (Col.) (unpub'd) - The petitioner cannot get habeas relief because he can't fit his new evidence into a constitutional claim where post-trial he learned by using new DNA techniques that the blood found in the van he used was not that of the victim, contrary to what the state had argued at trial.

S. Ct. case:

Cavazos v. Smith, 2011 WL 5118826 (10/31/11) - In a 6-3 vote, another per curiam reversal of a 9th Cir. habeas grant. It was not unreasonable for the California courts to find sufficient evidence to convict a grandmother of assaulting and killing her grandson. The S. Ct. was peeved at the 9th for repeatedly granting relief after two prior remands in light of new S. Ct. habeas cases. The 9th chose to believe the defense experts that the baby's death was not caused by being shaken and to discredit the state's experts' opposite opinions. But by doing so the 9th was usurping the jury's role. The 9th found troubling the lack of evidence of a brain tear. But the S. Ct. said there was evidence in the brain to indicate shaken baby syndrome ("SBS") and reasons why the experts didn't find a tear. Justice Ginsburg, joined by Justices Breyer and Sotomayor, wrote a very interesting dissent. Justice Ginsburg does not say the petitioner was entitled to relief. Rather, she says the S. Ct. should never have considered the merits because its decision only serves to prolong the petitioner's suffering for no good reason. The S. Ct. usually doesn't grant cert just to correct a fact-bound error, the petitioner has been free for the last five years and will now have to return to prison for at least another five years, the petitioner had no motive to hurt the baby [i.e., the baby wasn't crying], she had never hurt the baby before, the other kids in the room didn't hear her do anything, new post-trial information on SBS shows the state's experts were wrong and the petitioner's attorney did a terrible job. So, it's unfair to reverse. It was particular unfair to do so without according the petitioner a chance to brief the issues. The majority's response is that her remedy is a political one: to obtain clemency from the governor. On the bright side, we have another case to cite on behalf of granting cert with respect to a fact-bound issue.

Guideline Amendments:

In addition to reducing 16 level offenses to 12 levels and 12 level-offenses to 8 levels - if the prior conviction does not count for criminal history purposes - the new § 2L1.2 also suggests departures if the offense level overstates or understates the seriousness of the prior. It gives as an example of a downward departure a 16-level offense that is not an aggravated felony. It gives as an example of an upward departure a prior simple possession offense that involved a quantity of drugs inconsistent with personal use.

§ 5D1.1(c) now discourages giving supervised release terms to those who will be deported. Plus the minimum supervised release terms have been reduced to 2 years for Class A and B felonies and to 2 years for Class C and D felonies.

Defendants convicted of wilfully failing to pay child support do not get the 2-level bump for violating a court order. § 2J1.1, n. 2.

The Commission struck from § 3B1.2 some unhelpful language. § 3B1.2 no longer says the d. ct. can't award a role reduction solely based on the defendant's "bare assertion." And the note that the adjustment for minimal participant should be used infrequently was also eliminated.

§ 2K2.1, n. 15 encourages departures for straw firearm purchasers who were motivated by fear or a family relationship.

The interim FSA amendments are now permanent and in addition all minimal participants are capped at a 32 offense level.

2011-11-01T16:31:00.001-06:00

Phillips v. Addison, 2011 WL 5068099, No. 11-5100 (10-26-11 10th Cir.)(unpublished): equitable tolling of limitations period for filing a federal habeas petition is not justified where attorney made a simple, negligent mistake in calculating the filing deadline

US v. Corley, 2011 WL 5068106 , No. 11-7013 (10th Cir. 10-26-11) (unpublished): a 50-month sentence imposed following revocation of supervised release, which was 4 months above the maximum guidelines range, was substantively reasonable. The supervised release revocation was based on allegations that Mr. Corley possessed meth and a gun. One of the witnesses lied about her meth use. The judge dismissed the gun charge because it was based solely on her testimony and she was not credible, but revoked Mr. Corley based on the drug possession charge. On appeal, the Tenth Circuit affirmed. The sentencing court did not rely on the witness's testimony because it dismissed the gun charge, which was based solely on her testimony, and the meth charge was supported by other evidence. The guidelines allowed for an upward enhancement where the underlying sentence had been based on a downward variance, as this one was.

2011-11-01T16:29:00.000-06:00

U.S. v. Marrufo, 2011 WL 4925883 (10/16/11) (N.M.) (Published) - The 10th holds that the defendant's possession of a firearm "facilitated" the felony offense of tampering with evidence when the defendant hid that very same firearm to avoid detection of his crime of possessing the firearm. The defendant's hiding of the firearm was made easier by his possession of the firearm. So therefore he possessed a firearm in connection with another felony offense, resulting in a four level enhancement under § 2K2.1(b)(6). The defendant's firearm possession was not an accident or coincidence. There was no requirement that the felony offense be a separate, active offense and, even if there were, the tampering was a separate offense. It didn't matter that the defendant did not intend to facilitate a separate crime. § 2K2.1(b)(6) has no intent requirement.

U.S. v. Chavez, 2011 WL 4925884 (10/18/11) (N.M.) (Published) - The officer had reasonable suspicion to stop the defendant driving a Cadillac in a Wal-Mart parking lot where an anonymous caller told dispatchers he was a Wal-Mart employee at a specific Wal-Mart store and he saw a "disturbance" involving a Cadillac and a pickup and the driver of the Cadillac was "potentially intoxicated." When an officer came to the parking lot, someone pointed to the Cadillac and pickup. The tip was reliable enough because the tipster did provide enough information to learn his identity, he witnessed the events and gave a detailed description and an explanation for why he was calling and the officer verified some of the information when he saw the described vehicles in the lot. The 20-minute stop was not too long because after 9 minutes the officer had probable cause to arrest the defendant, even though the officer didn't execute an arrest at that time. There was probable cause that the defendant was guilty of DWI because his eyes were bloodshot and watery, an alcohol odor "emanated" from the defendant, the defendant admitted having a couple of beers and the officer was certain the defendant was intoxicated after giving the defendant sobriety tests. The § 4B1.2 commentary which says attempts of controlled substance offenses are "controlled substance offenses" was a proper exercise of the Sentencing Commission's broad authority under 28 U.S.C. § 994(a), even if the requirement of close-to-maximum sentences for career offenders under § 994(h) did not cover attempts.

U.S. v. McGuire, 2011 WL 4925781 (10/18/11) (Okl.) (unpub'd) - The d. ct. did not abuse its discretion when it upwardly varied from 327 months to 500 months for a kidnapping, based on the facts that the defendant sexually assaulted a 10-year-old 3 times during the kidnapping. This was okay even though the guidelines provided for sexual-exploitation and minor-victim enhancements. The 10th expressed reluctance to "recalibrate" review depending on a sentencing court's lack of experience with respect to a particular offense. The 10th determined the defendant had not shown what was the typical kidnapping case that received the average kidnapping sentence. The 10th also found unconvincing letters from supporters who held the defendant in high esteem at the same time that he was kidnapping. The letters did not show the defendant had reformed but rather that he led a double life.

U.S. v. Mata-Rodriguez, 2011 WL 5009858 (10/21/11) (Kan.) (unpub'd) - To be guilty of maintaining a residence for the purpose of drug distribution it is not necessary that drug distribution be the sole purpose for the residence. It need only be one of the primary purposes. There was sufficient evidence the defendant possessed the methamphetamine that was found in the police car he was transported in. That no drugs were found during a pat-down and the initial search of the car could be attributed to "sloppy" police work.

U.S. v. Dozal, 2011 WL 4959207 (10/19/11) (Kan.) (unpub'd) - A plea-agreement waiver of the right to collaterally attack the judgment includes a waiver of a claim that counsel was ineffective because counsel failed to file a motion to suppress before deciding to advise accepting the plea agreement.

KC v. Holder, 2011 WL 4925859 (10/18/11) (unpub'd) - The BIA abused its discretion when it found the Maoists in Nepal extorted her for financial gain, rather than for political reasons, despite the Immigration Judge crediting her explanation that the Maoists extorted her because she belonged to the Congress Party.

Cordova-Soto v. Holder, 2011 WL 4908351 (10/17/11) (unpub'd) - The alien's prior order of removal may be reinstated under 8 U.S.C. § 1231(a)(5), which allows such a procedure where an alien has "reeentered the U.S. illegally" after being removed, even though the alien reentered in a procedurally regular way. The alien was stopped at the border and was asked for her ID. She pretended to look for it and the inspector dealt with the other car passengers and then waved the car through. This reentry was illegal under § 1326(a) and therefore "illegal" under § 1231(a)(5).

Flores v. U.S. A.G., 2011 WL 4908363 (10/17/11) (Colo.) (unpub'd) - The 10th dismisses some alarming allegations. In this case, white federal employees were alleged to have used advanced technology from an outer space satellite to detect the genetic code of Mexican-Americans in El Paso and caused them severe pain and organ failure.

2011-10-19T11:25:00.001-06:00

A few 10th Circuit cases:

Henry v. Story, 2011 WL 4537796 (10/13/11) (N.M.) (Published) - In a civil rights case, an Albuquerque police officer did not use excessive force when he pointed his firearm at the plaintiff, whom the officer saw driving a car with a license plate that returned an NCIC "hit." [The "hit" turned out to be incorrect.]. By virtue of that "hit," the officer had probable cause to believe the plaintiff had stolen a vehicle, which is a felony, and he could reasonably believe the plaintiff posed an immediate threat to the public given the plaintiff's strong incentive to evade arrest by driving away. It doesn't matter that the officer didn't know whether or not the car had been stolen by force. The jury instructions did not incorrectly indicate the officers' adherence to standard operating procedures rendered their actions reasonable.

U.S. v. Lopez-Estrada, 2011 WL 4640859 (10/7/11) (Kan.) (unpub'd) - The officer had reasonable suspicion to believe the defendant's license plate violated a statute that requires the secure fastening of a plate to prevent swinging, even though the officer did not see the plate swinging while the defendant was driving. The officer could reasonably believe a jury-rigged job of affixing a plate might leave it poorly fastened and cause it to swing. [There's a picture of the securely-fastened license plate in the opinion].

Blazier v. Larson, 2011 WL 4552525 (10/4/11) (Utah) (unpub'd) - The prosecutor had absolute immunity from being sued for his threats to the plaintiff that if he kept publicly criticizing people who were allegedly the victims of the plaintiff's assault, the prosecutor would renew the assault charges he had dismissed. It was within the prosecutor's authority to make a threat to bring charges for conduct the officer believed to be felonious.

U.S. v. Wilson, 2011 WL 4552520 (10/4/11) (Utah) (unpub'd) - A 21-month guideline sentence was not substantively unreasonable for escape where the d. ct. noted the defendant walked out one month before his sentence ended and showed a confronting officer the peace sign. The facts indicated the defendant still had not learned his lesson.

Drug Conviction Reversed Because of Improper Admission of Prior Conduct Evidence

2011-10-18T09:05:00.000-06:00

A few 10th Cir. cases, including a real nice defense victory, and S. Ct. cert grants.

First, the 10th:

U.S. v. Moncayo, 2011 WL 4822974 (10/12/11) (N.M.) (unpub'd) The 10th reverses a possession of cocaine with the intent to distribute conviction because the judge erroneously allowed the admission of evidence of the defendant's prior cocaine-related conduct. In the instant case, lots of cocaine base was found in this trailer where the defendant was also found. The defense was that the defendant did not live in that trailer, but lived somewhere else. The defendant did not contest the intent to distribute element of the charge. The judge, [after asking his law clerk on the record what he should do and then misinterpreting what she said, while she suggested they consult off the record,] admitted, pursuant to Rule 404(b), evidence that, 16 months before the events leading to the charge in this case, an officer saw the defendant reach under the hood of a car and drop something, which later was found to be a clear plastic baggie with several different baggies inside containing cocaine, packaging commonly used to ease the sale of drugs. The government sought the admission of this evidence to prove intent to distribute. But the prior-act evidence was minimally relevant for that purpose because there was no showing how the cocaine was packaged in this case, [The court held it against the government that the photo of the sock in which the cocaine was found, while admitted into evidence, was not made part of the record], and intent was not in dispute. This minimal probative value was substantially outweighed by the danger of unfair prejudice and confusion caused by the evidence. It impugned the defendant's character and portrayed him as a drug dealer who was likely to posses the cocaine in this case because he had possessed cocaine in the past. And the judge's limiting instruction wasn't limiting at all. It told the jury it could be used for all the purposes laid out in 404(b), not just the one purpose the government said it wanted it used for. The government did not prove the error harmless because, although it put on substantial evidence the defendant lived in the trailer where the cocaine was found, the defendant put on credible evidence he lived elsewhere. It was likely the jury used the prior-act evidence for improper propensity reasons.

Palmer v. Board of Commissioners for Payne County Oklahoma, 2011 WL 4867555 (10/14/11) (Okl.) (unpub'd) - The jail administrator's refusal to take the plaintiff prisoner to the hospital in accord with a doctor's directions to address a MRSA infection would constitute a constitutional violation, if proven. It's no excuse that the administrator did not know the plaintiff was suffering from MRSA. It's enough that a doctor said the plaintiff should be taken to a hospital if he developed increased pain. A prison official cannot ignore an inmate's complaints of pain just because they are subjective.

Mays v. Dinwiddie, 2011 WL 4866469 (10/14/11) (Okl.) (unpub'd) - Oklahoma might have used the wrong ineffective-assistance-of-counsel standard when it indicated the merits of the issue the attorney failed to raise didn't matter to the resolution of the ineffective assistance of appellate counsel issue. But no relief anyway.

Cert Grants:

Blueford v. Arkansas, 2011 WL 1595979 (10/11/11) - Would it be a violation of double jeopardy to retry the defendant on first degree murder where the jury announced it had vote unanimously against first-degree murder, but could not agree on the manslaughter offense?

U.S. v. Alvarez, 2011 WL 3626544 (10/17/11) - Does the Stolen Valor Act, 18 U.S.C. § 704(b), which criminalizes falsely representing that you have been awarded a Congressional medal of honor, violate the Free Speech Clause of the First Amendment?

Kiobel v. Royal Dutch Petroleum, 2011 WL 4905479 (10/17/11) - Whether the Alien Torture Statute allows tort liability for corporations.

Mohumad v. Rajoub, 2011 WL 3055314 (10/17/11) - Whether the Torture Victim Protection Act permits actions against defendants that are not natural persons, such as the PLO.

Life Sentence in US v. Lujan

2011-10-05T15:29:00.001-06:00

The jury took less than four hours to return a non-unanimous verdict of life imprisonment in United States v. Larry Lujan, a New Mexico case in which the government sought a death sentence. This case was previously the subject of a Tenth Circuit appeal, US v. Lujan, 603 F.3d 850 (10th Cir. 2010).

2011-10-05T15:28:00.000-06:00

Luevano v. Holder, 2011 WL 4509473 (9/30/11) (Published) - The alien did not present enough facts about his arrest to show it was so fundamentally unfair so as to warrant exclusion of evidence. The removal proceedings themselves could not be dismissed as fruit of any poisonous tree. It was okay for the BIA to deny the alien's motion to continue the removal proceedings until he could be lawfully here pursuant to his U.S. citizen sister's application for his adjustment of status. It looked like it would take more than 18 years for her application to be granted, given the long waiting list and limited number of adjustments allowed each year.

U.S. v. Salvador-Munoz, 2011 WL 4526002 (9/30/11) (Okl.) (unpub'd) - The reentry defendant was not entitled to a duress or necessity defense, despite the Zetas' gangs threats to hurt him [a useful courier because he spoke English] if he didn't help them smuggle drugs to the U.S. by a certain deadline. The defendant had other lawful alternatives besides committing the horrible crime of entering the U.S. He could have moved to another Mexican town where his dad felt safe. His fear that another gang might threaten him if he moved to another town was insufficient to satisfy the imminent-threat requirement.

U.S. v. Villanueva, 2011 WL 4489567 (9/29/11) (N.M.) (unpub'd) - While the 10th Circuit acknowledged: "the better approach would have been for the d. ct. to permit the agent to testify "so that the d.ct. could determine whether the defendant met the complete and truthful part of the requirements to qualify for the safety valve reduction. Unfortunately, all the other sentences in the opinion were not so nice. The 10th declared the defendant gave untruthful or incomplete information about a few things and therefore the agent's testimony wouldn't have made a difference.

Navarro-Perez v. Holder, 2011 WL 4509484 (9/30/11) (unpub'd) - The 10th chastises both counsel for not submitting a 28(j) letter about a new 10th Circuit case that changed the law. So, to avoid such chastisement, it might be wise to submit a 28(j) even about a really bad new case.

Cert grants:

Wood v. Milyard, 2011 WL 1456997 (9/27/11) - Whether it was okay for the 10th to sua sponte raise the statute of limitations defense where the state had declared before the d. ct.: "the state will not challenge, but is not conceding, the timeliness of the habeas petition." And was the state's declaration a deliberate waiver of the statute of limitations defense.

Filarsky v. Delia, 2011 WL 496619 (9/27/11) - Does qualified immunity protect a private attorney who advises a city?

Vartelas v. Holder, 2011 WL 1302166 (9/27/11) - Whether an Illegal Immigration Reform and Immigration Responsibility Act provision, passed in 1996, which denies certain legal permanent residents with a certain criminal history the right to make casual trips abroad without fear of reentry denial, apply retroactively where the alien entered the relevant guilty plea before passage of the Act.

New Edition of Introduction to Federal Sentencing Released

2011-10-04T12:17:00.002-06:00

The Western District of Texas Federal Defender has announced the release of a new edition of their very helpful Introduction to Federahttp://www.blogger.com/img/blank.gifl Sentencing. The Thirteenth Edition is current through the Supreme Court's last term, the Sentencing Commission's latest amendments, and AG Holder's decision to agree to retroactive application of the FSA.

New to this edition are a small section on the child pornography guidelines and a section at the end summarizing each of the Supreme Court's post-Booker cases on the advisory guidelines system. I have also added internal bookmarks and hyperlinks to allow readers to navigate around the document more easily when reading it online.

Walking the Dog

2011-10-04T12:14:00.001-06:00

US v. Burleson, -- F.3d --, 2011 WL 4015679 (10th Cir. 9/12/11) (NM) - The COA reverses the grant of suppression by Judge Vazquez, who had ruled that the officer improperly checked for warrants after he had already satisfied the suspicion underlying the stop. The COA decides the officer who stopped three pedestrians walking down the middle of a Roswell street, one of them carrying a pit bull without a leash, lawfully performed a warrants check during a proper Terry investigatory stop, which led to discovery of an outstanding warrant for Mr. Burleson and to his illegal possession of guns and ammunition. An officer is entitled to ask a suspect to identify himself and to do a warrant check, whether the stop involves a motorist or a pedestrian. This furthers the important government interest in determining whether a suspect is wanted for another offense or has a record of violence or a mental disorder that might lead to violent activity that could put the officer's safety at risk.

2011-10-04T12:13:00.002-06:00

U.S. v. Blechman, 2011 WL 4060250 (9/14/11) (Kan.) (Published) - The 10th holds the d. ct. erred in admitting AOL and PACER records indicating to whom the particular accounts belonged because that information was hearsay. While witnesses testified the records were prepared in the regular course of business, the relevant information was unverified user-input information, i.e., it was provided by an outsider to the business who was not under a duty to provide accurate information. The businesses did not have a policy of verifying the information's accuracy. Nor was there proof the businesses had a sufficient self-interest in the information's accuracy. But the error was harmless. Several other pieces of evidence connected the defendant to the e-mail address, including the signature block, And the PACER evidence related to an uncharged scheme in another state, while there was plenty of evidence of the defendant's involvement in the charged scheme [which was filing false documents for bankruptcies to delay home forfeitures]. In a concurrence, Judge Hartz contended the evidence would have been admissible had it been admitted solely for the limited purpose of showing that someone had used the defendant's name to set up the accounts. Distinguishing a 1993 10th Circuit case, Judge Hartz says that, now that jurors would appreciate how prevalent identity fraud is, the jurors might be capable of using the evidence only for its proper nonhearsay purpose.

U.S. v. Cordery, 2011 WL 3805760 (8/30/11) (Utah) (Published) - I mistakenly previously reported this important case establishing that it is plain error to lengthen a term of imprisonment for rehabilitation purposes was unpublished. It's actually published.

U.S. v. Flores-Olmos, 2011 WL 4059044 (9/14/11) (Okl.) (unpub'd) - It was okay for the officer during a valid traffic stop to ask the defendant about his immigration status, even though the question was unrelated to the reason for the stop and the officer had no reasonable suspicion the defendant was unlawfully here. The defendant did not establish the stop was motivated by racial profiling in violation of equal protection.

2011-09-08T11:55:00.001-06:00

Several 10th Circuit cases:

U.S. v. Cordery, 2011 WL 3805760 (8/30/11) (Utah) (unpub'd) - The d. ct. committed reversible plain error in violation of Tapia v. U.S., 131 S. Ct. 2382 (2011), when it imposed a sentence five months above the low end of the guideline range because it believed the defendant needed that much extra time to qualify for RDAP. The circuits differ on whether to be plain an error must be plain at the d. ct. level or just at the appellate level. The 10th's precedent says it's the situation at the time of appeal that matters. The panel followed that precedent, while perhaps indicating it was unhappy with that conclusion. The error was plain now because of the Tapia decision. An impatient panel in U.S. v. Story, 635 F.3d 1241 (10th Cir. 2011), had found no plain error with respect to the identical issue shortly before the issuance of the Tapia decision because the S. Ct. had not yet decided Tapia and the circuits were divided. The parties agreed there was a reasonable probability the d. ct. would have imposed a lower sentence absent the error and because of that and "more importantly," because the d. ct. may have imposed a sentence below the range absent the error, the error seriously affected the fairness, integrity and public reputation of judicial proceedings.

U.S. v. Chang Hong, 2011 WL 3805763 (8/30/11) (Okl.) (Published) - Padilla v. Kentucky, 130 S. Ct. 1473 (2010), which decided that defense attorneys have an obligation to inform their clients of the immigration consequences of their guilty pleas, is a new rule that is not retroactively applicable under Teague v. Lane, 489 U.S. 288 (1989). Consequently, the 2255 motion was untimely because it was filed more than a year after the movant's conviction was final, although it was filed within a year of Padilla. So there will be no flood of Padilla victories in federal courts in the 10th Circuit.

Mascorro v. Billings, 2011 WL 3836439 (8/31/11) (Okl.) (Published) - An officer's warrantless entry into the plaintiff's home to arrest a minor for driving without taillights violated the Fourth Amendment. The minor had ignored the officer's signal to stop and entered the home, . The presumption of unreasonableness of warrantless home entry is difficult to rebut when the offense of the fleeing suspect is minor. There were insufficient exigent circumstances. There was only one exit from the home so that the risk of escape was extremely low. There was no evidence which could have been destroyed and no officer safety concerns. It was clearly established the officer's alleged conduct was unconstitutional, precluding qualified immunity. The S. Ct. has always required additional circumstances to permit the pursuit of a misdemeanant into a home.

U.S. v. Irvin, 2011 WL 3833812 (8/31/11) (Kan.) (Published) - The 10th reverses some of the two defendants' mortgage-fraud-related convictions. The d. ct. abused its discretion when it admitted a summary exhibit that summarized documents concerning which the government had not established the prerequisites for a business-record hearsay exception. The person testifying about the records could not say whether the title companies for whom he did not work kept the records in the regular course of business. The d. ct. was wrong to admit the exhibit on the grounds that it "had heard nothing contradicting the notion they were business records." The burden was on the proponent of the evidence to prove its admissibility. The government did not prove the error harmless with respect to one count because the exhibit "reduced weeks of complex testimony and inadmissible hearsay into an easily digested summary" and because, in seeking its admission, the government touted it as being very important. The error was harmless for other counts because the allegations in the exhibit were independently supported by admissible evidence. There was insufficient evidence one defendant assisted the other in committing contempt of court by violating his conditions of release, which prohibited committing crimes, because there was no evidence the defendant was aware of those conditions, although the co-defendant had told another about the conditions.
A document was a business record of one company even though it was originally prepared by a different company. The fraudulent financial information the defendant submitted to the bank had no actual impact on the ultimate issuance of the loan, but the information was "material" for bank fraud purposes because it had the capability of influencing the loan decision. There was sufficient evidence the funds disbursed by the bank that the defendant used to buy a house constituted gross receipts and so there was sufficient evidence of money laundering, even though the judge's instructions required that the funds be profits. The law of the case as to the elements did not apply where the government objected to the more defense-friendly jury instruction. There was sufficient evidence the defendant was aware the proceeds from a loan were criminally-derived proceeds, given his personal involvement in the substantive act of bank fraud that procured the proceeds. The loan proceeds were derived from an FDIC institution, even though the non-FDIC lender was the one who ultimately provided the money because the money came from the credit line extended by an FDIC bank. The inconsistent verdict of guilt for money laundering was valid even though the jury acquitted the defendant of the underlying fraud involved. The prosecutor's closing remark that the defendants' subprime mortgage scam was not helpful to society was a proper response to a defendant's testimony. There was sufficient evidence the criminal activity involved 5 or more participants, justifying an organizer-/leader enhancement.

U.S. v. Acosta-Gallardo, 2011 WL 3805764 (8/30/11) (Wyo.) (Published) - The defendant did not establish a Brady violation for disclosing late the fact that a government witness would testify the defendant had handled certain glass jars. This deprived the defendant of the chance to fingerprint the jars and show he hadn't touched the jars, undermining the witness's credibility. The defendant had not shown the evidence would be favorable or material because the defendant didn't show his prints weren't on the jars and even if he had, there could be many reasons for no prints or the witness could have innocently misrecollected. In a question of first impression, the 10th holds that proper venue for a telephone facilitation charge is in the district where either of the phone call participants is or, as in this case, where the facilitated drug felony took place. The government presented ample evidence that numerous overt acts of the conspiracy occurred in Wyoming. That was enough to establish venue even if the defendant never set foot in Wyoming. The defendant did not meet his burden to show the failure to instruct on venue was plain error because the defendant did not argue on appeal that it was. The government presented sufficient evidence of interdependency ,even though the defendant did not know several of the co-conspirators. It was enough that the evidence showed a "chain-and-link" conspiracy where the overall objective was to distribute meth for profit. The government did not introduce facts different from those alleged in the indictment.

U.S. v. Perez-Jimenez, 2011 WL 3648231 (8/19/11) (Colo.) (Published) - I'm sure you're thinking: "Didn't he already report on this case?" Yes, I did, but now sua sponte the 10th Circuit decided to publish it. The case holds that courts must look to the facts of the instant offense to decide if it's a crime of violence under the career offender guidelines and possessing two long shanks in prison is a crime of violence.

U.S. v. Rincon-Torres, 2011 WL 3795672 (8/29/11) (Kan.) (unpub'd) - Counsel did not waive the defendant's right to appeal the sentence when counsel said he had no objections to the court's proposed findings of fact and tentative sentence. Counsel had thoroughly raised and argued opposition to the 16-level enhancement. In context, counsel only meant that he did not raise any other issues than the ones he already had raised. But the argument that the 16-level offense was too old didn't cut it.

U.S. v. Vermillion, 2011 WL 3873816 (9/2/11) (Kan.) (unpub'd) - The defendant's appeal waiver waived his right to appeal, even though he was challenging the content of his PSR, not his sentence.

U.S. v. Landry, 2011 WL 3805499 (8/30/11) (Wyo.) (unpub'd) - Providing drugs on credit can be sufficient to demonstrate a conspiracy to distribute drugs. In calculating drug quantity for sentencing purposes, to show a certain amount was for personal use, the defendant must produce evidence tending to demonstrate he always intended to personally consume some specific portion of the drugs received from his co-conspirator. The defendant did not produce such evidence here.

Litteral v. Marshall, 2011 WL 3836441 (8/31/11) (N.M.) (unpub'd) - The N.M. S. Ct.'s interpretation of state law to preclude the award of good time credits to life prisoners was not so unforeseeable as to violate due process.

Miskovsky v. Jones, 2011 WL 3805610 (8/30/11) (Okl.) (unpub'd) - The 10th overturns a dismissal of a § 1983 suit. The prisoner alleged enough to warrant relief if true where he claimed he asked a duty officer why he was transferred and the duty officer said because he had really "pissed off a judge" by filing certain pleadings in federal court 15 days before and the new prison was more dangerous.

Sigala v. Bravo, 2011 WL 3805772 (8/30/11) (unpub'd) - The state did not create an unconstitutional impediment to the petitioner's timely filing of a 2254 petition, even though he claimed his attorney did not tell him about the final decision in his case. The state did enough by notifying counsel of the decision.

2011-08-31T18:14:00.001-06:00

Several 10th Circuit cases, including two very important ones, one of which contains potentially horrible news for those with juvenile drug adjudications.

U.S. v. Hernandez, 2011 WL 3673042 (8/23/11) (Wyo.) (Published) - The 10th addresses the issue of the revolving-door supervised release revocations under the "except that" clause of § 3583(e)(3). The 10th holds that clause imposes no restriction on how much prison time in the aggregate a d. ct. can impose on a defendant for multiple revocations. The words "any such revocation" in § 3583(e)(3) means the maximum applies anew to each new revocation, without regard to how much time the defendant has spent in prison already on prior revocations. The 10th rejected the defendant's argument that only revocations with respect to underlying sex offenses could not be aggregated. [The defendant argued that Congress added the "any such revocation" language when passing the PROTECT Act, which was primarily aimed at deterring child sexual abuse]. The 10th carefully notes it's not deciding whether certain language before the "except that" clause might require aggregation, i.e., the d.ct. may "require the defendant to serve in prison all or part of the supervised release term authorized by statute." The 10th also noted it was not deciding whether the reference in the "except that" clause to the "offense that resulted in a term of supervised release" might refer to the offense resulting in the prior revocation, not the underlying offense that started the whole deal, in which case, the maximum prison sentence would be one year.
Most importantly, the 10th does find an ultimate limit to the amount of prison time a defendant can receive. Under § 3583(h), a d. ct. can only impose an amount of supervised release that is the amount of authorized supervised release for the original offense minus the imprisonment term imposed. The 10th says the "imprisonment term imposed" under (h) is aggregated. So, at some point, the aggregate prison time would exceed the authorized supervised release term. The d. ct. could no longer impose a supervised release term that could be revoked.
In a footnote, the 10th rejects the defendant's classic lack-of-explanation argument based on the classic plain-error rationale that the defendant did not show the sentence would have been lower if the d. ct. explained it.

U.S. v. Coleman, 2011 WL 3773341 (8/26/11) (Okl.) (Published) - An ACCA case with very scary possible implications for felon possessors of firearms with juvenile drug adjudications and maybe those with adult N.M. second degree felony drug convictions. In this case, the defendant was initially adjudicated as qualifying under Oklahoma's Youthful Offender Act ("YOA"). He received the maximum 10 year sentence under the YOA. After he escaped, the judge converted the sentence to an adult conviction and committed him to an adult correctional facility. The defendant argued his maximum sentence was less than 10 years because he was sentenced to an adult facility for 10 years minus the time he'd already spent in juvenile facilities. But the 10th says the relevant statute is not the YOA, but the state drug act. The ACCA's 10 year-max "serious drug offense" requirement focuses on the "maximum punishment for any defendant charged with that crime, not the characteristics of a particular offender." Here the max in Oklahoma for a drug act offense is life. That's the relevant max. "The ACCA does not exclude drug trafficking convictions simply because they are committed by a juvenile." Yikes!!!

Rojem v. Workman, 2011 WL 3673100 (8/23/11) (Okl.) (Published) - The 10th did not have jurisdiction to consider the capital habeas petitioner's appeal of the d. ct.'s refusal to disburse funds to investigate the validity of the guilt determination. An order about the amount of CJA payments is not appealable on an interlocutory basis. The appeal does not concern a complete denial of counsel, which was appealable in Harbison v. Bell, 129 S. Ct. 1481 (2009).

U.S. v. Gilmore, 2011 WL 3677854 (8/23/11) (Kan.) (unpub'd) - The 10th notes, without resolving the matter, that the question whether sharing drugs constitutes distribution is unresolved in the 10th case law.

Ali v. Dinwiddie, 2011 WL 3792377 (8/26/11) (Okl.) (unpub'd) - The 10th reverses a grant of summary judgment for a prison guard where the prisoner alleged the guard punched and kicked him after he was handcuffed and not resisting. The plaintiff alleged enough for an excessive-force claim, i.e., that more than de minimis force was applied maliciously and sadistically. The d. ct. wrongly discredited the plaintiff's complaints.

Biodiversity Conservation Alliance v. BLM, 2011 WL 3734199 (8/25/11) (Wyo.) (unpub'd) - The d. ct. abused its discretion when it extended the time for the plaintiff to appeal where the attorney did not receive the electronic notice of the appealed order until a day after the entry of the order. Counsel simply misunderstood the law about when the deadline was. That's not "excusable neglect" so as to justify an extension.

U.S. v. Tucker, 2011 WL 3677886 (8/23/11) (Utah) (unpub'd) - The defendant had no recourse to get money back from the government where he contended the government had wrongly given the money to the bank victim of his robbery. The government couldn't return the money because the government no longer had it.

Kirby v. Attorney General for the State of New Mexico, No. 11-2082 (8/22/11) (N.M.) (unpub'd) - The defendant hired the "victim" to design a website for his business, but then did not pay the designer for his work. The designer changed the password to prevent the defendant from using the designs until the defendant paid up. But in turn the defendant had the web space provider reset the password thereby blocking the "victim's" blocking attempt. The 10th holds a person of reasonable intelligence would understand that the designer has an ownership interest in the website on which his designed pages are displayed and therefore the fraud statute was not unconstitutionally vague as applied to the defendant. There was sufficient evidence of the "victim's" ownership of the website, even though the "victim" testified the defendant was the owner. The defendant's complaints that he was convicted based on promises that future events would take place was based on state law that is not a proper subject of federal habeas.

Several Tenth Circuit Cases

2011-08-09T15:47:00.001-06:00

U.S. v. Prince, 2011 WL 3373788 (8/5/11) (Kan.) (Published) - Some creative lawyering bites the dust. It is not a violation of equal protection under Batson or the right to have a jury selected from a fair cross-section of the community for the government to exclude by peremptory challenge every person who favored legalization of marijuana in a marijuana manufacturing case. Political or ideological beliefs are different from immutable characteristics like race, ethnicity or gender. Death penalty cases involving jurors' beliefs only apply to the capital context. The fair-cross-section right only applies to venires, not peremptory strikes, and only to distinctive groups, not groups with only shared beliefs. A defendant charged with making a false statement on a firearm application under § 924(a)(1)(A) does not have to know the application is to be kept in the records of a licensed person. The 10th distinguished Flores-Figueroa, in which the S. Ct. said the word "knowingly" applied to all the parts of the sentence, on the grounds that the records part of the sentence in § 924(a)(10(A) was only a "jurisdictional hook." It does not bear on the nefariousness of the conduct. Refraining from imposing a knowledge requirement will not create a danger of criminalizing otherwise innocent conduct. Knowingly giving a false address when filling out ATF forms violates § 924(a)(1)(A). There was sufficient evidence from neighbors, documents and defendant's statements that the defendant lived at a different address than the one he provided that was on his driver's license,where he apparently never lived. There was also sufficient evidence that the defendant was personally involved in marijuana growing in the basement of his home. There was a smell and evidence of the marijuana enterprise strewn throughout the house and the jury could compare his handwriting to handwriting on books detailing the operation. The 10th rejected the argument that it would have been stupid for the defendant to keep growing marijuana because he knew ahead of time that officers were coming over to check on his firearms.

U.S. v. Fraser, 2011 WL 3276238 (8/2/11) (Wyo.) (Published) - Yet another affirmance of a refusal to allow the jury to consider a necessity defense in a felon-in-possession case. First, the 10th questions whether a necessity defense is ever authorized to justify a felon's possession of a firearm, given the lack of a mention of that defense in § 922(g)(1) and the controversial nature of that defense in the common law. And maybe it's not even necessary given the availability of self-defense and defense-of-another defenses. After going on that tangent, the 10th holds that, even if there is such a defense, it was not available in this case because the defendant had plenty of time to call the police about the threat the shooting victim had made to him. Before the shooting, the defendant engaged in a number of errands. Before a necessity defense may be considered, the defendant must first try to seek the police's help. It doesn't matter that the defendant mistrusted the police. He had to give them a chance to protect him. The d. ct. adequately considered the § 3553(a) factors, although it did not mention § 3553(a), and adequately explained that it departed under § 5K2.21 [uncharged conduct] because the defendant was involved in cocaine trafficking for 4 years. The d. ct. did not rely on the defendant's killing of the threatener, as the defendant claimed.

Rimbert v. Eli Lilly & Co., 2011 WL 3328543 (8/3/11) (N.M.) (Published) - Yes, I did notice this is a civil non-habeas case. But it clarifies the standard a d. ct. may follow in ruling on a motion for reconsideration, which motions we come across or file occasionally. The law of the case does not apply before a d. ct.'s entry of a final judgment. So, no showing of new evidence, intervening authority or manifest injustice is required for a d. ct. to change its mind or a new judge to overturn a previously-assigned judge's ruling. In this case, it was okay for a new judge, to reverse the prior judge's ruling allowing the testimony of an expert witness.

U.S. v. Jones, 2011 WL 3329565 (8/3/11) (Okl.) (unpub'd) - A word to the wise regarding when a defendant allocutes at a drug sentencing. It was okay to vary upward for a number of reasons, including the defendant's failure to apologize to the people to whom he sold crack. He only apologized to his family and the court.

U.S. v. Nghiem, 2011 WL 3330076 (8/3/11) (Kan.) (unpub'd) - A presumption of reasonableness applies to a sentence within the child porn guideline range, even if the child porn guidelines are not empirically based. Guidelines can properly follow Congressional policy. The d. ct. erred when it considered that the defendant had violated a pretrial release condition not to use a computer, when in fact he was allowed to use a computer while on pretrial release. But no reversal because the defendant did not meet his plain error burden to show the sentence was increased because of the error. The d. ct. had rejected the 11(c)(1)(C) plea to a lower sentence long before the perceived violation and sentenced at the bottom of the guideline range. Perhaps if the sentence was at the high end, the defendant might have met his burden.

Contrearas-Bocanegra v. Holder, 2011 WL 3332469 (8/2/11) (Published) - The 10th grants rehearing en banc on issues relating to whether an alien can pursue a motion to reopen after he's been physically removed from the U.S. The panel decision was unfavorable to the alien

A Fine Distinction

2011-08-08T09:46:00.000-06:00

Caveness v. Roberts, 2011 WL 3018785 (7/25/11) (Kan.) (unpub'd) - In the context of a habeas ineffective assistance claim for not filing a motion to suppress, the 10th found an officer did not deny the petitioner his right to counsel during custodial interrogation where the detective said: "it would look better in front of the jury if you answer my questions" without an attorney. This declaration was significantly different than saying the jury would use it against him if he asked for counsel. The Constitution only prevents a jury from drawing a negative inference from the defendant's exercise of his Fifth Amendment right. It does not bar a jury from drawing a positive inference from a decision to waive that right. You understand that distinction, don't you?

2241 Challenge Rejected as Moot

2011-08-08T09:45:00.000-06:00

Rhodes v. Judiscak, 2011 WL 3134731 (7/27/11) (N.M.) (Published) - The prisoner's § 2241 challenge to BOP's calculation of his sentence was moot because he was now on supervised release. That a successful challenge might bolster an eventual request for shortening his supervised release under § 3583(e)(1) was not enough to avoid mootness because the d. ct. had no power to shorten supervised release now through § 2241. The d. ct. would only be giving an advisory opinion.

Loss Calculation in Fraud Case Not Affected by Turning Assets over to Government

2011-08-08T09:43:00.000-06:00

U.S. v. Merriman, 2011 WL 3134656 (7/27/11) (Col.) (Published) - The defendant's turning in of millions of dollars worth of assets to the government at the time the defendant turned himself in for offenses the government didn't previously know about did not warrant subtraction of the value of the assets from the loss calculation. To be subtracted, USSG § 2B1.1 requires that the refunds be made to the victim, not the government, and before detection, not at the time of detection. And the d. ct. did not clearly err in finding the defendant had abused his position of trust under USSG § 3B1.3 where he had authority to make investments on behalf of investors with complete discretion to invest however he wanted. The lack of transparency significantly contributed to the defendant's ability to avoid detection. The position of trust did not have to be the only contributor to the fraud.

10th Adds to Defendant's Plain Error Burden When Challenging Priors on Appeal

2011-08-08T09:42:00.000-06:00

U.S. v. Castellano-Barba, 2011 WL 3184203 (7/27/11) (Col.) (Published) - The 10th adds to its prior decision to clarify how it justifies requiring defendants to show plain error in categorizing prior convictions. The 10th notes it may take judicial notice of publicly filed records. So, a defendant arguing plain error should submit public documents proving her/his contention. This requirement does not violate the rule that the government has the burden to prove enhancements because the defendant has the burden to prove her/his position when alleging plain error on appeal. In this case, the defendant did not proffer any record showing that his California conviction was for transportation of marijuana for personal use rather than drug trafficking. So the defendant gets a 16-level bump.

Uncounseled Tribal Court Convictions Resulting in Jail Time Can Be Basis for Later Enhancements

2011-08-08T09:40:00.001-06:00

U.S. v. Shavanaux, 2011 WL 3087015 (7/26/11) (Utah) (Published) - Tribal court convictions resulting in jail time, obtained in the absence of appointed counsel for an indigent defendant, can be predicate convictions for a domestic assault conviction under 18 U.S.C. § 117(a), or for any other enhanced punishment for that matter. The convictions were not unconstitutional because neither the Sixth Amendment nor the Due Process Clause applies to tribal courts. As long as the proceedings comply with the Indian Civil Rights Act by allowing representation by counsel at the defendant's expense, the resulting convictions are copacetic. This follows from the notion that tribes are independent sovereigns. The fact that convictions from foreign countries can constitutionally be used as predicate offenses if they are fundamentally fair supports the use of tribal convictions to enhance sentences. The deprivation of appointed counsel does not render proceedings fundamentally unfair. This decision is at odds with 9th Circuit precedent. There is also no equal protection problem. The singling out of Indians for prosecution on the basis of uncounseled convictions is a political, not a racial, distinction. The defendant chose to associate himself with the tribe. The 10th reverses the d. ct.'s dismissal of the indictment.

10th Refuses to Apply S.Ct. ACCA Decisions in GL Context

2011-08-08T09:39:00.000-06:00

U.S. v. Reyes-Alfonso, 2011 WL 3134683 (7/27/11) (N.M.) (Published) - The 10th holds that a prior Colorado conviction for sexual contact-no consent was for a "forcible sex offense" under § 2L1.2's definition of "crime of violence." The 10th had already made that ruling in U.S. v. Romero-Hernandez, 505 F.3d 1082 (10th Cir. 2007). But, undaunted, the defense argued later S. Ct. decisions in Begay and Johnson called for a reinterpretation of what is a "forcible sex offense." But the 10th found Begay inapposite because it dealt with the ACCA, which listed different offenses than does § 2L1.2's definition of "crime of violence." And Johnson defined "physical force" in the ACCA, which has nothing to do with sex crimes and "physical force" is not a part of the definition of "forcible sex offense." No physical force is required to constitute a "forcible sex offense," especially in light of later defining amendments to § 2L1.2's application notes. The d. ct. adequately explained its within-guideline-range sentence by saying the bottom of the range was sufficient but not greater than necessary to meet the § 3553(a) requirements, despite the defendant's complaint that the guidelines double-counted his prior conviction. The 46-month sentence was substantively reasonable, given the defendant's 5 uncounted convictions and the fact he reentered only 5 days after his deportation.

Upward Variance OK; Ex Post Facto and Due Process Arguments Rejected

2011-08-08T09:38:00.000-06:00

U.S. v. Waseta, 2011 WL 3071541 (7/26/11) (N.M.) (Published) - The 10th finds no ex-post-facto-due-process problem with an upward variance under Booker for a pre-Booker offense. The defendant's 46-month sentence for sexual abuse of a minor between 12 and 16, where the guideline range was 15 to 21 months, was not higher than the defendant might realistically have imagined he might receive at the time of the crime, even though Judge Vazquez found a departure, as opposed to a variance, was not warranted. What matters to the 10th is not what a particular sentencing court did after the crime. What matters is the notice of what sentence might be imposed at the time of the crime. At that time, the defendant could not have predicted he would get an acceptance of responsibility reduction, but he could have felt he could receive upward departures for underrepresentation of criminal history, uncharged conduct, extreme psychological injury or extreme conduct, all departures due to alleged repeated sexual abuse of the victim over an 11 year-period. It did not matter that the state of the record may not have supported the departures or apparently that the d. ct. did not expressly find repeated abuse. It was enough that the "universe of facts," even contested ones, would have been realistically imaginable to the defendant [by imagining all the acts the victim might falsely accuse him of?]. To make matters worse, the 10th indicates a defendant could waive an argument distinguishing precedent if the argument was only made in the reply brief, because the government wouldn't have had a chance to respond to the distinction. In other words, an appellant may have to respond in the opening brief to every argument s/he thinks the appellee might raise in the answer brief. And it was not enough to trigger the district court's duty to make a finding of fact regarding repeated sexual abuse of the victim when the defendant made a general unspecified objection to suggested grounds for an upward variance.

Upward Variance Reversed as Procedurally Unreasonable!

2011-08-08T09:37:00.000-06:00

U.S. v. Lente, 2011 WL 3211506 (7/29/11) (N.M.) (Published) - Reversal of an upward variance on procedural unreasonableness grounds. Judge Matheson wrote the opinion, joined by Judges Holloway and Gorsuch (!!!). The principle the 10th announced that applies to other cases is that a d. ct. must address all of a defendant's nonfrivolous arguments when imposing an upward variance. In this case, the d. ct. erred when it did not address the defendant's argument, supported by sentencing data and case examples, that the government's proposed sentence of 18 years for 3 involuntary manslaughters and an assault resulting from a DWI accident created unwarranted disparities with sentences of similar offenses and offenders. The d. ct. also was wrong not to address the mitigating circumstances surrounding the DWI, including that the defendant's mother asked her to drive an obnoxious guy home. The disparity error was not harmless because the d. ct.'s consideration of the argument might have convinced the court to impose a sentence different than 16 years [where the range was 46-57 months], and the d. ct.'s lack of explanation prevented meaningful appellate review.. The court concluded: "The need to avoid unwarranted disparities is a critical sentencing factor. Equal justice is a core goal of our system. When justification of a sentence is not forthcoming, the credibility of the sentence suffers." The 10th made it clear it was not making a judgment as to whether the sentence was too high.

On the bad news side, the 10th found it was okay for the d. ct. to take judicial notice of the supposedly well-traveled nature of the road the defendant drove on in determining she was extremely reckless. The defendant received enough notice of that ground for variance because a hearing was held on the subject. The 10th attempted to clarify the difference between procedural and substantive challenges. Procedural challenges focus on the sentencing methods and substantive challenges focus on the d. ct.'s consideration of § 3553(a) factors and the sufficiency of justifications for the sentence. The 10th recharacterized as substantive some of the arguments the defendant labeled as procedural. The 10th did not consider the substantive-reasonableness arguments. The defendant's complaints about using her BAC and lack of license to show extreme recklessness really attacked the weight the d. ct. gave to those factors. The defendant's contention that the d. ct. did not give a persuasive reason for disagreeing with the policy of the guidelines was a substantive argument as well. The 10th found the defendant was really making a substantive complaint that the d. ct. did not give enough weight to her terrible upbringing and amenability to treatment.. Otherwise, the d. ct. did address those issues in a procedurally reasonable way.

Vague or Speculative Claims Insufficient to Warrant Duress Instructions in Drug Case

2011-08-02T10:36:00.000-06:00

US v. Beckstrom, No. 10-4108 (UT), 7/28/11 - District court’s refusal to permit duress defense to possession with intent to distribute fifty grams or more of meth affirmed, despite defendant’s claim that he would be killed by unnamed persons with connections to Mexican drug cartels if he did not go along, because defendant had ample opportunity to notify law enforcement authorities of his situation. Vague or speculative claim that notifying the cops would be unavailing or ineffective won’t cut it.

Plus, mandatory sentence of life imprisonment was properly imposed because defendant’s two prior drug-related convictions arose from “separate criminal episodes.” One was a state conviction for possession of dangerous drugs for sale, and the other was a federal continuing criminal enterprise conviction based in part on the state conviction. Since defendant could have ceased his drug-related activity after being arrested in the state case, but chose not to, the CCE conviction, which requires at least three predicate offenses, was sufficiently distinct from the state case to warrant treating it as a separate episode.

Crimes of Violence, Good Faith Rule, Violation of International Law Among Topics

2011-07-28T09:48:00.002-06:00

A few 10th Cir. cases and one S. Ct. stay denial. First, the 10th:

U.S. v. Thomas, 2011 WL 2620644 (7/5/11) (Kan.) (Published) - The 10th applies the latest ACCA S. Ct. case, Sykes v. U.S., 131 S. Ct. 2267 (2011), and holds two Kansas convictions for eluding police, one by driving around tire deflating devices or by committing five or more moving violations, and the other involving eluding capture for the commission of a felony, are crimes of violence under § 2K2.1(a)(2) and § 4B1.2(a). They are just as risky as the eluding officers by vehicle in Sykes. And the scienter requirements are similar. The Sykes statute involved knowing or intentional conduct and the Kansas statute involved willful conduct. The 10th noted that post-Sykes its prior holdings that other types of eluding officer offenses were violent felonies remain good law.

U.S. v. Soza, 2011 WL 2643901 (7/5/11) (N.M.) (7/5/11) (Published) - The 10th confirms, in light of the recent S. Ct. Davis decision, which was consistent with U.S. v. McCane, 573 F.3d 1037 (10th Cir. 2009), that the good faith exception to the exclusionary rule applies to an officer's violation of Gant in objectively reasonable reliance on 10th Circuit law that found a search of a vehicle incident to arrest is okay, even when the defendant is unable to reach anything in the vehicle.

U.S. v. Hernandez-Odilio, 2011 WL 2620997 (7/5/11) (Kan.) (unpub'd) - The defendant waived his right to appeal a sentence below the guideline range, even though the first part of the appeal waiver only referred to not being allowed to appeal a within-guideline-range sentence. The rest of the waiver indicated the defendant could only appeal a sentence above the range.

U.S. v. Grillo, 2011 WL 2631787 (7/6/11) (Wyo.) (unpub'd) - By asking for a 60-78 month sentence, the defendant waived his argument that a 78-month sentence was substantively unreasonable.

Lobozzo v. Colorado Department of Corrections, 2011 WL 2663548 (7/8/11) (Colo.) (7/8/11) (unpub'd) - Consensual sexual relations between a guard and an inmate is rape, since the inmate cannot legally consent, and is sufficiently serious to constitute a constitutional violation. But in this case, the plaintiff could not show the supervisors were responsible for the guard's misconduct.

S. Ct. news:

Garcia v. Texas, 2011 WL 2651245 (7/7/11) (per curiam) - By a 5-4 decision with the usual alignment, the S. Ct. refuses to stay the petitioner's execution, despite his, the President's and Mexico's pleas that Congress might pass legislation by January enforcing the Geneva Convention's requirement that officers notify non-U.S.-citizen arrestees of the right to consular assistance. The majority ruled the Due Process Clause does not prohibit a state from executing someone just because some day legislation might authorize a collateral attack on the judgment. The Court's job is to rule on the law as it is, not what it might be. It is unlikely that after 7 years Congress would soon actually pass the needed legislation. The Court disses the president's claim of dire consequences to international relations from denial of the stay request, saying Congress apparently does not find the consequences so dire. And, it looks like the petitioner was not prejudiced by the violation of the Convention.

Justice Breyer wrote a dissent, noting the U.S. is in irreparable breach of international law. The petitioner is entitled to the proper procedure, according to the international criminal court's ruling, whether or not the results of that procedure would lead to relief for the petitioner. The Court should take the President's word for it that Congressional legislation is a reasonable possibility. The President's view that the execution would seriously jeopardize international relations should be credited. The interest in immediate execution pales in comparison to the important interests at stake in staying the execution.

2011-07-27T09:09:00.002-06:00

A few 10th Cir. cases and one cert grant. First, the 10th:

U.S. v. Rushin, 2011 WL 2547563 (6/28/11) (Kan.) (Publshed) - The 10th goes out of its way to decide the first prong of the Strickland test when it could have easily disposed of the case on the prejudice prong, as the concurring Judge Holmes points out. The 10th holds that counsel does not unreasonably perform when s/he fails to move to dismiss for an obvious Speedy Trial Act violation and the remedy will only be dismissal without prejudice, unless the defendant can show a particular benefit from such a dismissal. The 10th declares that a d. ct. should not dismiss serious charges with prejudice absent a showing of appreciable prejudice to the defendant or intentional dilatory conduct or pattern of neglect by the government. Here no such showing could be made. The d. ct. would have abused its discretion if it dismissed the robbery charges in this case with prejudice. The 10th rejected the defendant's claim that he had nothing to lose because he ultimately was convicted after a jury trial. Looking from the pretrial perspective, a motion to dismiss could have interrupted plea negotiations or pissed off the d. ct. The defendant did not show the motion would have improved the strained relationship between counsel and the defendant and then resulted in a beneficial plea deal. The 10th acknowledged something would be gained by a dismissal without prejudice. But, given the strong presumption that counsel elected not to file a motion for sound tactical reasons, the 10th was "loathe to conclude the 6th Amendment required counsel to obtain the indeterminate benefit of a motion and place on the government the burden to reindict." The 10th went on to hold that the defendant did not show prejudice either because after the dismissal the government would have reindicted and the defendant would have been convicted again. The prejudice inquiry is not limited to looking at only what would happen to one particular indictment. Judge Holmes thought that counsel may have performed unreasonably in failing to move to dismiss. He saw no apparent benefit to failing to make the motion and a possible benefit in the government not reprosecuting. He thought it made more sense for the 10th to just decide the obvious prejudice issue.

U.S. v. Maestas, 2011 WL 2547564 (6/28/11) (N.M.) (Published) - This case involves an interpretation of USSG § 2B1.1(b)(13). That provision provides for an enhancement for a theft or fraud offense that involves "the conscious or reckless risk of death or serious bodily injury." The 10th acknowledges it could have just ruled that the d. ct. [Judge Hansen] did not clearly err in finding the defendant knew that taking gold loaded with plutonium from Los Alamos Labs created a serious health risk. Instead, the 10th decides to clarify what mens rea § 2B1.1(b)(13) requires. Taking the bad side of a circuit split, the 10th holds that provision does not require the government to prove the defendant was subjectively aware of the risk created by his or her acts. The government need only prove the defendant was reckless as to the existence of the risk, i.e., the risk would have been obvious to a reasonable person. "Reckless" in § 2B1.1(b)(13) does not mean what it means in the involuntary manslaughter guideline. If the defendant had to be aware of the risk then the word "conscious" in the provision would be redundant. And besides we don't want defendants to escape the consequences of committing a dangerous theft by "claiming" ignorance. The d. ct. did not clearly err in holding the gold posed a health risk. The government showed the gold would be extremely harmful if it entered a person's body. There was a risk the gold would be melted down, which might cause the plutonium to come to the surface or be aerosolized. The government didn't have to prove that risk was highly likely to occur.

U.S. v. Balbin-Mesa, 2011 WL 2557655 (6/29/11) (N.M.) (Published) - The 10th upholds as substantively reasonable a 28-month reentry sentence, even though the defendant's only conviction [for cocaine trafficking] was 21 years old . The guideline range was 33-41 months. The 10th holds that a below-guideline-range sentence is presumptively reasonable, just like a within-range sentence is. The 10th spent some time figuring out whether the defendant was making a procedural or substantive reasonableness argument. It decided it was a substantive argument because the defendant argued the sentence was unreasonable based on "all" of the circumstances The most interesting part of this case is the fact that the 10th had previously denied without prejudice a government motion to enforce the appeal waiver [an almost unheard-of event]. The defendant had pleaded guilty without a plea agreement. At sentencing, the government offered to agree to a one-level variance if the defendant waived his right to appeal. Defense counsel agreed. The d. ct. [Judge Black] did not advise or question the defendant. A week later, counsel filed an appeal waiver ostensibly signed by the defendant. The defendant asserted his counsel never advised him about the waiver, he did not authorize counsel to waive and there was no evidence it was his signature on the waiver.

Rieck v. Jensen, 2011 WL 2573363 (6/30/11) (Utah) (Published) - The officer did not violate the Fourth Amendment when he entered property by opening a gate with a "No Trespassing" sign against the protests of the owner of the property. The officer entered an "open field" unprotected by the 4th. The gate was several hundred yards from the owner's home and the area invaded was abutting, and clearly visible from, a public highway. It didn't matter that the owner took steps to protect his privacy.

Vasiliu v. Holder, 2011 WL 2193985 (6/7/11) (Published) - The 10th grants the government's motion to publish this previously reported case which holds that an alien cannot collaterally challenge a prior conviction in immigration proceedings.

U.S. v. Broemmel, 2011 WL 2600409 (7/1/11) (Colo.) (unpub'd) - This case involves the supervised release revocation of an unrepresented defendant. At the revocation hearing, the defendant explained he had not been able to get a hold of his lawyer to whom he had given a retainer. The d. ct. sympathetically responded: "we're going ahead." The defendant had a constitutional right to counsel at the hearing only if he made a colorable claim that he did not violate a condition or that there were "substantial," "complex" mitigating factors. The defendant, whom the 10th describes as an "erstwhile attorney," did not show he was unable to speak effectively for himself. The explanation he gave for violating was not difficult to develop or present. Any violation of the counsel requirements of Fed. R. Crim. P. 32.1(b)(2)(D) or 18 U.S.C. § 3006A(a)(1)(E) did not affect the defendant's substantial rights under plain error review. The defendant's supervised release period had not expired because he had not shown [without the help of counsel] that the work release program he participated in while serving a state sentence was so much like parole that it should not toll the running of his supervised release period like incarceration would. Nor did it matter that the U.S. probation office treated him as though he were on supervised release, [imposing reporting requirements, etc.] while he was imprisoned. Plain error reversal was not warranted where the defendant did not receive the violation report until a few minutes before the hearing and he was given notice that the hearing was an initial appearance, not that the court would make a final disposition at the hearing. As grounds for that conclusion, the 10th pointed to the fact that the unrepresented defendant did not cross the probation officer, present any evidence, or request a continuance or a Rule 32.1 hearing.

Cert grant:

Williams v. Illinois, 2011 WL 2535081 (6/28/11) - The Court didn't waste any time taking a case to test the limits of Bullcoming. In this case, an expert, who had nothing to do with the testing of the evidence, gave an opinion based on a DNA lab report, but the report was not admitted for the truth of the matter asserted, but only to explain the expert's opinion about the results. This is one of the situations that Justice Sotomayor stressed in her Bullcoming concurrence was not presented in Bullcoming.

Moneygram records of wire transfers admissible as business records

2011-07-05T14:38:00.000-06:00

US v. Keck, -- F.3d --, 2011 WL 2600581 (10th Cir. 7/1/11) - affirmance of convictions and sentence on multiple drug and money-laundering conspiracy counts. There was sufficient evidence to support the convictions. Moneygram spreadsheets which reflected company records of wire transfers were properly admitted because, like mobile phone records, they contained data created for the company's own purposes and not to prove a fact at trial and thus were not testimonial. Adjustments to Keck's drug conspiracy offense level, based on conduct that related to the money-laundering conviction, were proper. Any error the district court made in applying the GLs did not affect the advisory sentence or the court's decision to impose a life sentence.

2011-06-30T17:04:00.000-06:00

Supreme Court:

Bullcoming v. New Mexico, 2011 WL 2472799 (6/23/11) - By a 5-4 vote, with the majority opinion written by Justice Ginsburg and with a critical concurrence by Justice Sotomayor, the Court held the admission of a lab analyst's certification of the defendant's blood alcohol level, through the testimony of the analyst's supervisor, violated the Confrontation Clause. The certification was testimonial, and thus subject to Crawford's requirements of unavailability and cross-examination, because it was created for evidentiary purposes, not, as New Mexico claimed, pursuant to a non-adversarial public duty. That the statement was unsworn does not make it any less testimonial. It was just like the lab report in Melendez-Diaz. The certification is not excepted from Crawford's rule. It reported more than a machine-generated number. It also certified, among other things, that the analyst adhered to protocol and performed the test on the defendant's sample. And, in any event, the analyst's reporting of a number he saw is no different than a witness testifying the traffic light was red, for example. And clearly the Confrontation Clause applies to that. The obvious reliability of a statement would not excuse application of the Clause. The surrogate testimony of the supervisor could not communicate what the analyst observed and cross of the supervisor could not expose any incompetence or dishonesty of the analyst, e.g. as to why the analyst was on unpaid leave. Nor did the state assert the supervisor had any independent opinion about the defendant's BAC. The Clause cannot be dispensed with just because on the whole the interests of the Clause may have been served and the trial seemed to be fair overall.
Justice GInsburg, joined only by Justice Scalia, went on to explain that the decision would not wreak havoc. They noted labs could preserve samples, which a new analyst could retest. They rejected the notion the state could require the defendant to initiate retesting. They do say states could require the defendant to give notice that s/he demands the state call the report's author. They noted the paucity of cases going to trial and the likelihood of stipulations because live expert testimony might hurt the defendant's case.
Justice Sotomayor's dissent indicates this case may be as far as the S. Ct. is willing to go in applying Crawford. She stresses the limited reach of the decision. She opined that reliability, hearsay rules and formality are relevant in determining the confrontation issue. She explained what this case was not about. (1) The state did not suggest an alternative purpose for the certification, such as where medical reports are created for treatment purposes. (2) The witness did not have even a limited connection to the scientific test at issue, such as observing some of the analyst's conduct of the test. (3) This was not a situation where an expert is asked for his expert opinion about an unadmitted report. (4) The state did not just present machine-generated results. Thus, it may well be that Justice Sotomayor will side with the prosecution under slightly different circumstances.
In dissent, Justice Kennedy, joined by Justices Roberts, Breyer and Alito, criticizes Crawford, extolls the reliability of scientific evidence. predicts havoc will reign and suggests the solution to bad lab work is proper lab procedures, not confrontation at trial.

U.S. v. Juvenile Male, 2011 WL 2518925 (6/27/11) (per curiam) - The case presented the question whether SORNA violates the Ex Post Facto Clause when applied to juveniles adjudicated as delinquent before SORNA's enactment. But in a 5-3 decision (Justice Kagan recused) the Court found the case was moot when the 9th Circuit decided it. The defendant challenged the imposition of sex offender registration, supervised-release conditions. But the order requiring him to register had expired on his 21st birthday. Pursuant to the certified question procedure, the Montana S. Ct. opined that the defendant would have to register under state law, whether or not the federal registration condition was valid. So the defendant did not meet his burden to identify an ongoing collateral consequence of the order he was challenging. That a favorable decision might serve as a useful precedent in a hypothetical lawsuit challenging Montana's registration requirement did not save this case from mootness. And the defendant's possible duty under SORNA to register is not a collateral consequence of the order he challenged, but rather independent of it. And the issue is not capable of repetition and evading review because the over-21 defendant will never again be subject to an order imposing special conditions of juvenile supervision. Justices Ginsburg, Breyer and Sotomayor would have remanded the case to the circuit court to decide the mootness issue.

Cert Grants:

U.S. v. Jones, 2011 WL 1456728 (6/27/11) - Whether the installing of a GPS tracking device and/or the prolonged use of that device violates the Fourth Amendment. The D. C. Circuit had ruled the month-long use of the device was unconstitutional.

Messerschmidt v. Millender, 2011 WL 2518829 (6/27/11) - A § 1983 case that might have implications for the good faith exception to the exclusionary rule. The questions presented concern when are officers entitled to qualified immunity with respect to executing an overbroad warrant that is not supported by probable cause and whether the "so lacking in indicia of probable cause" exception to Leon is too hard to apply and too tough on officers.

Martel v. Clair, 2011 WL 1481309 (6/27/11) - Under what circumstances is a capital § 2254 petitioner entitled to new counsel.

10th Circuit:

U.S. v. Ransom, 2011 WL 2508235 (6/24/11) (Kan.) (Published) - A case that demonstrates the importance of truthful timesheet reporting. The 10th upholds a HUD employee's convictions for wire fraud and theft of public money for falsifying his timesheets. He indicated he was working during hours he was actually playing tennis or gambling at a casino. The 10th rejected the defendant's argument that, as a salaried person, his hours had no direct relation to his paycheck. His time records did affect his leave balances and leave has a monetary value. Contrary to the defendant's claims, he had to take leave for absences for partial days. The statute required him to work particular hours. So it didn't matter whether he worked lots of hours outside of those time periods. He had the necessary intent because there was evidence he had notice that his paychecks were tied to his time records, (including his disciplining of employees for abusing timekeeping procedures and an angry confrontation with an assistant when she encouraged him to take leave for time spent playing tennis) and that he had to be in the office during core working hours. Considering the instructions as a whole, the instruction that federal employees must either work the assigned hours or account for absent time with approved leave did not lead the jury to believe he could be convicted just because he didn't take leave during working hours.

U.S. v. Martinez-Haro, 2011 WL 2465843 (6/22/11) (Utah) (Published) - The 10th had jurisdiction to review an order requiring a second competency examination. The d. ct. had authority to order more than one examination. 18 U.S.C. § 4247(b) provides for more than one examiner and does not restrict the court from ordering multiple exams and multiple hearings. The 10th would be concerned if the additional exam was ordered to allow the government to shop for a mental health expert who would find the defendant competent. But here the initial examiner, while finding the defendant incompetent, suggested the defendant be examined by an expert who spoke Spanish, the defendant's native language.

Waugh v. Holder, 2011 WL 2464779 (6/22/11) (Published) - Padilla does not impose on the government the burden of proving a conviction is valid. It is not appropriate for the IJ or the BIA to determine whether a conviction is invalid under Padilla or any other constitutional theory. Collateral attacks on convictions belong in the jurisdiction where the conviction was obtained. But the government need not wait for collateral proceedings in that jurisdiction to be finished before removing the alien. An alien is removable as soon as the trial court enters a formal judgment of guilt.

Toevs v. Reid, 2011 WL 2437782 (6/20/11) (Colo.) (Published) - Indefinite placement in an administrative segregation level system (in this case for 7 years) triggered due process protections. The inmate did not receive meaningful periodic review of his progression through levels 1-3 because the prison never gave him reasons why he was recommended for or denied progression in order to provide a guide for his future behavior. And for levels 4-6 there was no review at all in violation of due process. But the defendants were entitled to qualified immunity because the 10th had not previously defined what meaningful periodic review meant in a stratified incentive program.

U.S. v. Jordan, 2011 WL 2530926 (6/27/11) (unpub'd) - The d. ct. did not err when it imposed an obstruction-of-justice enhancement where the defendant sent letters to the prosecutor threatening to seize the prosecutor's assets and exact certain penalties, even after the d. ct. told him to stop doing it. The letters were harassing and obstructive.

U.S. v. Rubio-Ayala, 2011 WL 2489990 (6/23/11) (Kan.) (unpub'd) - A motion to enforce a plea agreement filed before the defendant files an opening brief is not premature. The whole point of the waiver is to save the government the trouble of full-fledged briefing.

U.S. v. Senninger, 2011 WL 2455662 (6/21/11) (Colo.) (unpub'd) - Mail fraud convictions established the defendants engaged in the overall scheme to defraud the IRS and therefore the loss calculation and restitution were not limited to the conduct related to the specific counts of conviction.

Senetncing Project Analyst Position

2011-06-24T10:36:00.003-06:00

The Sentencing Project, in Washington, D.C. has announced that it is seeking a research analyst. Information about the Sentencing Project can be http://www.blogger.com/img/blank.gifobtainedhttp://www.blogger.com/img/blank.gif the project's website, sentencingproject.org. More information about the position is available here.

2011-06-21T16:38:00.001-06:00

Champ v. Zavaras, 2011 WL 2411002 (6/16/11) (unpub'd) - The 10th interprets the Supreme Court recent Cullen decision to require it to ignore any evidence submitted to the federal district court in a § 2254 case.

Defendant Successfully Challenges Mental-Health Treatment Supervised Release Condition, Restitution

2011-06-21T16:34:00.001-06:00

U.S. v. Majors, 2011 WL 2356466 (6/15/11) (Colo.) (unpub'd) - The defendant successfully challenges a mental-health-treatment supervised-release condition and restitution.

The 10th first holds that, whenever a defendant argues there was insufficient evidence to support an aspect of the sentence, he is making a substantive-reasonableness claim and therefore he does not have to raise the issue below to avoid plain error review.

There was insufficient evidence to support a requirement that the defendant submit to mental health treatment where the district court said it would not consider a couple of disputed mental-health-related matters and the only evidence left was unsupported speculation the defendant might have suffered a head injury 10 years ago and he admitted to situational depression several years ago. And there was no evidence to support the restitution amount, only the prosecutor's unsupported assertion. The 10th left it up to the district court to decide whether to allow the government to present more evidence to support the condition and the restitution.

Safety-valve Disclosures Should be Before Sentencing Hearing

2011-06-21T16:31:00.002-06:00

U.S. v. Galvon-Manzo, 2011 WL 2315194 (6/14/11) (Utah) (Published) - An important and unhelpful safety-valve decision. Generally speaking, any and all disclosures for safety-valve purposes are timely only if they occur prior to the sentencing hearing. The disclosure is supposed to demonstrate the defendant is fully cooperating and to benefit the government pre-hearing so that it can investigate the defendant's truthfulness.

The district court can exercise its discretion and allow the defendant to make disclosures during the hearing, but, in this case, the district court did not abuse its discretion when it refused to allow the defendant to essentially debrief during the hearing on the grounds that the defendant lied too much in his post-arrest statement and one debriefing. It was okay for the district court to decide no further information from the defendant would be useful or informative because it would be unreliable.

With respect to the co-defendant, the district court did not abuse its discretion when it refused to hold an evidentiary hearing to allow the defendant to show his pre-sentencing disclosures were truthful and complete. The district court could assess the credibility of the defendant's information without hearing testimony.

Convictions Based on Insurance Theft Affirmed

2011-06-14T14:28:00.000-06:00

US v. Hillman, -- F.3d --, 2011 WL 2306227 (10th Cir. 6/13/11) - affirmance of defendant's convictions of several crimes re: a scheme carried out with his girlfriend to steal money from inactive annuity policies held by insurance co. for which she worked. Grand jury testimony characterizing matters as untruthful and illegal did not improperly influence the grand jury or invade the grand jury's deliberative processes because the challenged testimony was factual and explained the course of the investigation. Anyhow, if there were grand jury errors, the petit jury's guilty verdict mooted them.

AUSA's interview with girlfriend re: whether reference to "grandma's" trust was a code-word for the illegal scheme was not improper and was certainly not plain error. IRS Agent's testimony that defendant lied during an interview about the source of the money he received was an accurate repetition of what Hillman admitted during the course of that same interview and did not improperly invade the province of the petit jury.

The appellate court will not reverse conviction on basis of insufficient evidence supporting a deliberate ignorance instruction where there is sufficient unchallenged evidence of actual knowledge of the illegal nature of the fraudulent scheme.

Temporary Staff Attorney Positions Opening at Tenth Circuit

2011-06-10T14:10:00.004-06:00

According to a press release from the Tenth Circuit Court of Appeals, the Tenth Circuit will be posting a announcement for one or two temporary staff attorneys in Denver. Employment must begin by July 3 and will be for approximately 2-3 months. The primary responsibility will be updating the Deskbook and Immigration Manual. Additional information will be available at the Tenth Circuit's website, http://www.ca10.uscourts.gov/.

2011-06-06T11:00:00.000-06:00

U.S. v. Thornburgh, No. 09-5156 (5/27/11) (Okl.) (Published) - There was sufficient evidence the conspiracy to defraud carried on into the statute of limitations period where the defendant stopped communicating with one of the conspirators, but still engaged in some conduct that furthered the conspiracy, in particular "lulling" the victims. The 10th confines the holding in U.S. v. Santos, 553 U.S. 507 (2008) to its facts: "proceeds" in the money laundering statute with respect to an illegal gambling operation means "profits," but otherwise, for example in this wire fraud case, "proceeds" can be gross receipts. Any error in failing to instruct the jury properly was not plain, given how differently the circuits have applied Santos. [And, besides, Congress has now defined "proceeds" as "any property" and so overruled Santos.] Because the defendant did not identify which co-conspirator statements were inadmissible, the 10th refused to address the question. It was plain error not to instruct the jury that it had to find the defendant violated 18 U.S.C. § 1349 after its enactment on July 30, 2002. But the defendant did not show his substantial rights were affected because the defendant's activities before and after that date were pretty much the same. There was no plain error in failing to sever defendants, where the defendants pursued similar defenses. The defendant waived his right to be present at trial when his counsel asked the court to allow the defendant to absent himself for medical reasons and said he thought it best for his client that the trial continue in the defendant's absence.

U.S. v. Fishman, 2011 WL 2084207 (5/27/11) (5/27/11) (Okl.) (Published) - The 10th addressed some of the same issues the defendant's co-defendant, Mr. Thornburgh raised and the following issues. The defendant did not "in effect" testify before the grand jury pursuant to a grant of immunity. No one authorized to give immunity did so. The defendant was deeply involved in the conspiracy. It was unlikely the defendant could watch as months went by and investors failed to get the money they were promised and not be aware the scheme was fraudulent. The defendant's brief was "woefully inadequate" when it argued for a half-page that the evidence of money laundering was insufficient. And besides the evidence was sufficient. And there was also sufficient evidence there was one conspiracy, not three. There's one conspiracy as long as the conspirator's goals are not at cross purposes, even if participants come and go. The defendant's argument that the amount of loss for his guideline calculation was unreasonable was too abbreviated to warrant addressing. The defendant did not meet his burden to establish he withdrew from the conspiracy before the statute of limitations kicked in. Cooperation with authorities is not enough to show withdrawal.

Byrd v. Workman, 2011 WL 2084204 (5/27/11) (Okl.) (Published) - A denial of habeas relief primarily based on the really stringent IA and habeas standards. There was no need to apply the harmless error standard because the Strickland prejudice prong is at least as difficult a standard to meet. Counsel failed to discover that only 4 of the petitioner's 7 convictions were countable under Oklahoma's habitual offender statute. As a result, the jury who decided guilt and sentence were exposed to more convictions than they would otherwise have been. The 10th thinks it's a novel argument to say the petitioner might have received a lower sentence if the jury was exposed to less convictions. Since no S. Ct. case had indicated such an analysis was required, the petitioner was out of luck. The Okl. appellate court's mistaken assumption that the trial court ruled all the convictions were admissible for impeachment purposes did not entitle the petitioner to relief. He still had to show the state court's decision was "based on" the mistake and establish the 2 prongs of the Strickland test. He did not prove the extra number of convictions before the jury affected the jury's decision. This case was different from an unpublished 10th case where the prosecutor stressed to the jury the number of convictions.

U.S. v. Thompson, 2011 WL 2064849 (5/26/110 (Col.) (unpub'd) - An unremarkable holding that a bottom-of-the-guideline-range sentence was substantively reasonable, but a remarkable concurrence by Judge O'Brien. He wrote separately to "commend" the d. ct. for its "resolve" in imposing "condign" [i.e., deserved, I had to look it up], punishment. He footnoted Daniel Webster's quote: "I would invoke those who fill the seats of justice, and all who minister at her altar, that they execute the wholesome and necessary severity of the law." He goes on to opine that the defendant was a "confirmed grifter" who received a sentence that was perhaps less, but certainly not more, than she deserved.

U.S. v. Heath, 2011 WL 2023425 (5/25/11) (Okl.) (unpub'd) - "Access devices" under 18 U.S.C. § 1029(e)(1) includes credit card account numbers alone.

Richwine v. Romero, 2011 WL 2066552 (5/26/11) (N.M.) (unpub'd) - A habeas procedural win. The state had expressly waived exhaustion when it admitted all the petitioner's issues were exhausted. The d. ct. erred when it decided some of the issues were unexhausted without considering the state's waiver. The 10th also interestingly [to me] indicated perhaps a petitioner may exhaust in N.M. by just raising issues before the N.M. S. Ct. without raising them below.

U.S. v. Goodwin, 2011 WL 2006335 (5/24/110 (Kan.) (unpub'd) - The rule that precludes a conviction for conspiracy for just a buyer-seller relationship does not apply when the defendant purchases the drugs for resale. There was sufficient evidence the defendant participated in the conspiracy, even though he was a low-level street dealer. He was still integral to the conspiracy. There was sufficient evidence to establish venue in Kansas that either he or the person he called was in Kansas when the relevant phone conversation occurred. It was not cruel or unusual punishment to impose a life sentence for a first-time felony conviction of possession with intent to distribute 50 grams or more of cocaine.

U.S. v. Temple, 2011 WL 2006308 (5/24/11) (Kan.) (unpub'd) - It was okay to instruct the jury on the offense of aiding and abetting a conspiracy. There is such a thing. The defendant's subjective lack of knowledge that her co-conspirator possessed firearms in connection with drug trafficking was not enough to meet her burden to show the connection was "clearly improbable" under USSG § 2D1.1, comment. (n. 3).

U.S. v. McDaniel, 2011 WL2006304 (5/24/11) (Kan.) (unpub'd) - Rule 901 sets a "low bar" for admission of voice identification evidence. "Minimal familiarity" with the defendant's voice is enough for an officer to identify the voice on recordings. How much the defendant talked to the officer only went to the weight of the officer's testimony.

Wise v. Chester, 2011 WL 2023415 (5/25/11) (Kan.) (unpub'd) - BOP correctly refused to give the defendant credit for time he spent in custody after he was taken from state custody to federal custody pursuant to a writ of habeas corpus ad prosequendum because the state gave him credit against his state sentence for that time. The feds were just temporarily borrowing the defendant.

No New Trial Even Though Cooperating Codefendant was Insane; No Acceptance Where Guilty Plea Entered on Morning of Trial

2011-06-06T09:31:00.002-06:00

Unpublished Decisions:

US v. Crabbe, No. 10-1226, 6/2/11 (CO) - Defendant and codefendant Rowan were partners in a business that supplied temporary nurses. Rowan was president and ran things; defendant was vice president. They often didn’t file their quarterly tax returns or remit withheld employee FICA taxes, and wound up getting indicted. Rowan pled guilty and testified against defendant, who was convicted on several counts. Rowan’s attorney questioned his client’s competence to be sentenced. A psychiatrist concluded that Rowan fluctuated between periods of delirium and lucidity, and could not predict whether he would be lucid on any particular day. Rowan died before sentencing. Defendant moved for a new trial based on alleged Brady violation in failing to disclose Rowan’s possible incompetence as a witness or because of newly discovered evidence, and to permit discovery from Rowan’s attorney. The motions were denied and the Tenth affirmed. (1) No Brady violation because the government was not aware of Rowan’s mental condition, and facts that might have put it on notice were not in themselves material. (2) Defendant not entitled to new trial because there was plenty of evidence supporting guilty verdicts apart from Rowan’s testimony, so outcome would likely not have changed had Rowan not testified at all.

US v. Ochoa-Olivas, No. 10-2250, 6/2/11 (NM) - Illegal reentry defendant changed his mind and pled guilty the morning his trial was to begin. The district court refused to award acceptance of responsibility reduction and the Tenth affirmed. The district court did not abuse its discretion, although it could have granted reduction, so the below guidelines sentence was both procedurally and substantively reasonable.

Important Decision Regarding Reentry Instructions

2011-06-06T09:29:00.001-06:00

US v. Sierra-Ledesma, Nos. 10-3066 and 3067, 6/2/11 (KS) - Mens rea for an 8 USC § 1326(a) illegal reentry charge based on being found in the US, and how to instruct a jury on it, were the main issues here. Conviction affirmed.

Held: (1) the district court erred by not instructing the jury that, in order to convict, it had to find beyond a reasonable doubt that the defendant “reentered the United States with an intent to do so” but the error was harmless beyond a reasonable doubt because defendant admitted to entering the US by crossing the border in Arizona after having been deported. The district court properly refused to use the 10th’s Pattern Jury Instruction, which has as one element that the defendant was “knowingly found” in the US because the phrase makes no sense. The court still had to instruct on mens rea.

(2) Defendant’s admission that he was born in Mexico was sufficient to prove that he was not a citizen or national of the US.

3) Any error in admitting evidence of defendant’s prior illegal reentry conviction was harmless.

4) any misconduct in prosecutor’s rebuttal closing that the defense argument about the government not having proven that defendant was not a US national was a red herring was harmless.

What has caused the reduction in crime rates? Two articles.

2011-06-02T09:39:00.003-06:00

Violent crime is apparently at a 40-year low. Colleagues forwarded some links to articles about the reduced crime http://www.blogger.com/img/blank.gifratehttp://www.blogger.com/img/blank.gifs. "Could Lead Abatement Reduce Social Problems," by Ed Drayton, starts off: "The amount of violent crime in the United States dropped significantly last year, to the lowest rates in 40 years. Kevin Drum argues that it may be due to successful lead abatement efforts." As pointed out by my colleague, this may be a basis for mitigation arguments if your client was exposed to lead as a child.

A Wall Street Journal article, "Hard Times, Fewer Crimes," also mentions lead abatement as a potential factor in the decrease in crime, though it also looks at other possible causes, including economic changes, longer imprisonment, and cultural changes.

Conviction on Substantive Offense Vacated on Venue Grounds, But Conspiracy Conviction Stands

2011-05-24T15:09:00.000-06:00

US v. Foy, -- F.3d --, 2011 WL 1957680 (10th Cir. 5/23/11) (KS) - conviction on attempt to possess with intent to distribute cocaine is vacated because of gov't failure to establish that Mr. Foy committed any act which constituted a substantial step toward commission of the substantive offense in Kansas. While venue in Kansas was proper re: conspiracy, because of co-conspirators' overt acts in furtherance of the conspiracy in Kansas, imputation was not proper to establish venue for the attempt charge since it does not require concerted activity.

The district court correctly denied suppression of wiretap evidence. Although the wiretap applications misstated the source of the source of the authority to file them, they were authorized by an executive official with the power to do so and so did not subvert the primary purposes of the wiretap statute's authorization requirement. The affidavits in support of the wiretap applications were sufficient to support the district judge's conclusion that the wiretaps were necessary.

Because Mr. Foy did not argue insufficiency of evidence of conspiracy in his motion for judgment of acquittal, his sufficiency of the evidence claim is reviewed for plain error only. The jury reasonably inferred that Mr. Foy and his co-defendant were dependent upon each other in their drug trafficking endeavors and the interdependence evidence was adequate to sustain his Mr. Foy's conspiracy conviction.

Defendant's Consent to Search Was Involuntary Where Agents Falsely Implied Defendant Was In Danger from a Bomb

2011-05-19T15:06:00.001-06:00

U.S. v. Harrison, 2011 WL 1782961 (5/11/11) (Okl.) (Published) - The 10th affirms a district court's suppression grant because the defendant's consent to search was involuntary. At the defendant's apartment door, ATF agents falsely told the defendant the police had received an anonymous phone call saying there were drugs and bombs in the apartment. The defendant replied he didn't think there were bombs in his apartment. One of the agents said: "any time we get a phone call like this our boss makes us come and investigate and see if there's a threat or danger." One of the agents assured him they would not bust him for a small bag of weed. The district court found the ensuing consent involuntary because the agents implied the defendant might be in danger from a bomb. The government claimed the agents only implied the defendant was unlawfully possessing bombs. While officers can use deceit and trickery in some circumstances, the 10th ruled, deceit and trickery can render a consent involuntary where the misrepresentations deprive the individual "of the ability to make a fair assessment of the need to surrender his privacy." Here the court did not clearly err when it found the officers created the impression the defendant was in physical danger. The lack of advice that the defendant could refuse consent was also a factor. The defendant's willingness to sit in the living room during the agents' search did not mean he felt no threat. And, besides, his subjective fear is only one factor in the involuntariness analysis. The 10th emphasized it was the government's burden to prove the consent was voluntary.

Denial of Suppression Motion Reversed; Officer "Reasonably Could Have Observed" Van's Plate was Legal

2011-05-19T15:05:00.000-06:00

U.S. v. Trestyn, 2011 WL 1783008 (5/11/11) (Wyo.) (Published) - Another suppression victory. The officer unreasonably extended the traffic stop because, as he approached the minivan, he reasonably could have observed the minivan's California license plate displayed a registration number in accordance with California law. At that point, the officer had no more justification to detain the occupants. In my mind, it's important that the 10th did not require that the officer actually notice that the plates were legal. It was enough that he "reasonably could have observed" that. The 10th reverses suppression denial.
In other issues, the district court did not abuse its discretion when it denied the defendant's request for a continuance of the suppression hearing to allow new counsel to represent her at the hearing. The defendant waited until the day before the hearing to make the request without explaining why she waited so long and her first counsel was prepared to represent her, The record was not developed enough for the 10th to decide a claim of ineffective assistance of counsel with respect to the suppression hearing. Both defendants waived a challenge to the stop itself because they had conceded below that it was justified at its inception. Importantly, raising the argument in a motion to reconsider did not undo the waiver.

Sentencing Victory! Tenth Reversing 2B1.1(b)(4) Enhancement and Imposition of Fine

2011-05-19T15:02:00.001-06:00

U.S. v. Vigil, 2011 WL 1798020 (5/12/11) (Utah) (Published) - And yet another defense victory, this time in sentencing. The 2-level enhancement under USSG § 2B1.1(b)(4) when the defendant is "in the business of receiving and selling stolen property" only applies when the defendant has sold property stolen by others and is in that business. The intent of the provision is to extra-punish professional fences, not people who sell goods they have stolen or use goods others have stolen. In this case, the defendant was found with a bunch of stolen IDs and stolen checks. There was no evidence he had sold, or was going to sell, any stolen items. The government did not prove the error in imposing the enhancement was harmless, even though the d. ct. indicated it thought a higher sentence than the one it imposed may have been appropriate. The district court did not say it would impose the same sentence if it was wrong about what the range was and to impose the same sentence on remand it would have to vary upward 4 months.
The district court also erred when it imposed a fine without considering the defendant's ability to pay it [the presentence report said he did not have the ability to pay a fine and the government did not object to that finding] or the effect of the fine on the ability to pay restitution. The district court provided no reason for the imposition of a fine. The record indicated the court imposed the fine because it was disappointed the plea agreement restricted how much restitution it could order.

Tenth Addresses Inventory Search, Exigent Circumstances Issues

2011-05-19T15:00:00.001-06:00

U.S. v. Creighton, 2011 WL 1797912 (5/12/11) (Solo.) (Published) - The officers conducted an inventory search of the defendant's luggage according to standard criteria where the standard operating procedures required inventorying "all personal property" coming into the department's possession. The defendant did not have a reasonable expectation of privacy in a hotel room where the defendant knew management had claimed the rent was overdue and had told the registered occupant to pay or vacate the premises. There might be an exception to this rule if there was a pattern or practice of allowing the person to stay beyond the check-out time, but there was no evidence of such here.
The 10th also found the officers reasonably believed exigent circumstances existed to remove the defendant from a home. The defendant's cohort falsely told police he threatened to hurt her mother, who was in the home, if she did not return to the home in 3 hours. The police had the cohort call the mother to come out of the house. When the mother came out she knew nothing about any threat to her, but the cohort never claimed the mother knew about the threat. The officers had 3 concerns that justified them threatening to send in a police dog if the defendant did not leave the house: (1) the cohort had said the defendant had held her against her will; (2) the defendant remained armed with a gun; and (3) he was engaged in forgery and fraud. Everything was okay because the police could take seriously the lies the cohort told until her story unraveled after the defendant's arrest. The officers had to secure the entire crime scene and gain safe access to all individuals before investigating. In addition, the majority suggested the defendant may have waived the argument that his removal from the home was unlawful when he failed to raise that issue during the government's prior interlocutory appeal as an alternative ground for affirming the d.ct.'s initial granting of the suppression motion, based on the illegality of the subsequent arrest. Judge Lucero concurred with the majority's decision on the merits, but strongly objected to the notion that the defendant may have waived an argument by not raising it during the government's appeal. He pointed out there was no authority a defendant must raise alternative arguments when the government appeals. He had no right to cross-appeal. Given the state of the record at the time, it may have been frivolous for the defendant to make the argument then.

No Abuse of Discretion to Deny Request for Attorney's Fees Under Hyde Amendment

2011-05-19T14:59:00.001-06:00

U.S. v. Lain, 2011 WL 1798017 (5/12/11) (Kan.) (Published) - It was not an abuse of discretion for the district court to refuse to award the defendant attorney's fees under the Hyde Amendment on the grounds that the government's criminal charges against him were "vexatious, frivolous or in bad faith." The jury acquitted him of a charge of willfully transferring a gun interstate without using a licensed firearm dealer. The prosecutor's animosity towards the defendant did not show the prosecution was selective or vindictive. And there was sufficient evidence to justify the government pursuing the charge given the defendant's dishonest acquisition of the gun. A defendant can willfully violate a law without knowing about the law, as long as he intentionally undertakes an act he knows to be wrongful. The government's superseding charge of possessing a firearm while under indictment, even though the indictment in question had already been dismissed, was the result of sloppy work, not bad faith.

Section 2254 Petition Can't Be Used to Challenge State Courts' Interpretation of Statute

2011-05-19T14:57:00.000-06:00

Anderson-Bey v. Zavaras, 2011 WL 1760026 (5/9/11) (Colo.) (Published) - The 10th explores when a 28 USC § 2254 challenge to the sufficiency of the evidence is really a challenge to the state courts' interpretation of a state statute. When it's the latter, the petitioner is out of luck. Here the Colorado courts decided that an employee of a sandwich shop was "in control of" the cash the petitioner took from the cash register, even though the employee did not handle the money and did not even know how to open the register. It was enough that he knew where the money taken from the register was hidden and he closed the business at the end of the day. This was a matter of state law which federal courts may not second-guess. The robbery conviction stands. And the petitioner could not challenge a different conviction that increased his robbery sentence because he had finished serving his sentence for the prior conviction and he did not claim he was deprived of his right to counsel with respect to the prior conviction.

Petitioner Lacked Colorable Claim to Actual Innocence

2011-05-19T14:55:00.001-06:00

U.S. v. Payne, 2011 WL 1760423 (5/10/11) (Okl.) (Published) - The 10th explicitly overrules an old case that indicated a prisoner could only use § 2255 to overturn a sentence, not a conviction. Consequently, the petitioner's petition for writ of error coram nobis cannot succeed because he could have pursued § 2255 relief challenging his conviction when he was in custody. His § 2255 claim is now time-barred. He had not proven his actual innocence by showing officers involved in his case had worked with Tulsa officers indicted for planting evidence in other cases.

Crime of Moral Turpitude Includes Any Crime with Intent to Defraud

2011-05-19T14:53:00.000-06:00

Rodrguez-Heredia v. Holder, 2011 WL 1770828 (5/10/11) (Published) - This is the case in which the 10th decided any crime with an intent to defraud was a crime of moral turpitude; it is now published at the government's request.

Sentencing Challenge Rejected

2011-05-19T14:52:00.001-06:00

U.S. v. Saignaphone, 2011 WL 1807433 (5/12/11) (Colo.) (unpub'd) - The 10th discusses an argument that Congress intended for more people to get probation than the Sentencing Commission has provided for. The 10th holds, however, that the district court did not abuse its discretion in determining a sentence of home detention would be insufficient punishment for depriving taxpayers of 2.3 million dollars regardless of the defendant's lack of criminal history, her chances of recidivism and Congress' intent regarding probation.

Tenth Summarily Disposes of Reentry Issues

2011-05-19T14:50:00.002-06:00

U.S. v. Villalobos-Lopez, 2011 WL 1807435 (5/12/11) (Colo.) (unpub'd) - While the 10th acknowledged its duty under Anders to conduct a "full examination of the record," the court appears unbothered by the fact that the presentence report was not in the record, [because neither counsel nor the alien defendant claimed there was any procedural errors], and that it couldn't tell from the little record it had whether the defendant had raised his arguments below about coming to this country to avoid being killed and mistakenly believing he could enter legally. To top it off, the 10th says an alien's reasons for illegal reentry cannot serve as a basis for departure, when the new § 2L1.2, n. 8 explicitly provides for departure where, among other things, the defendant's entry is motivated by cultural ties.

CJA Guidelines for Clemency Cases Amended

2011-05-17T14:35:00.003-06:00

There are new CJA Guidelines regarding Section 2254 capital clemency ahttp://www.blogger.com/img/blank.gifppointments, budgeting and vouchers, announced SueAnn Fitch, CJA Supervising Attorney for the Tenth Circuit Court of Appeals. All the guidelines for death penalty and capital habeas corpus representations is available here.

The clemency guidelines now state:

§ 680 Clemency
§ 680.10 Clemency Representation by Counsel
§ 680.10.10 New Appointments
A new appointment for clemency representation is not necessary since, under 18 U.S.C. § 3599(e), each attorney appointed to represent the defendant for habeas corpus proceedings under 28 U.S.C. § 2254, unless replaced by similarly qualified counsel, "shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant."
§ 680.10.20 Motions to Withdraw

(a) Motions to withdraw from the clemency representation should be brought in the federal district court where the habeas corpus matter was filed.
(b) Upon granting a motion to withdraw, unless the defendant is represented by similarly qualified counsel or representation is waived by the defendant, the court shall appoint counsel to represent the defendant for any available clemency proceedings.

§ 680.20 Clemency Vouchers
§ 680.20.10 Issuance of Voucher for Clemency Work
Upon appointment of counsel for habeas corpus proceedings brought under 28 U.S.C. § 2254, the district court should issue appointed counsel two CJA payment vouchers (Form CJA 30 (Death Penalty Proceedings: Appointment of and Authority to Pay Court Appointed Counsel)); one designated for the habeas corpus proceeding and one designated for a potential clemency proceeding.
§ 680.20.20 Processing of Clemency Vouchers
All attorney compensation (Form CJA 30 (Death Penalty Proceedings: Appointment of and Authority to Pay Court Appointed Counsel)) and investigative, expert, or other services vouchers (Form CJA 31 (Death Penalty Proceedings: Ex Parte Request for Authorization and Voucher for Expert and Other Services) pertaining to the clemency representation should be submitted to the district court, regardless of whether the habeas corpus case is on appeal at the time.
§ 680.30 Budgeting Clemency Work

(a) Consistent with § 640, courts are encouraged to require counsel appointed in 28 U.S.C. § 2254 proceedings to submit a proposed initial clemency budget for court approval that will be subject to modification in light of facts and developments that emerge as the case proceeds.
(b) The district court, in consultation with counsel, should determine when the clemency budget should be submitted — early in the habeas corpus proceedings, or at the beginning of the clemency work. In order to allow sufficient time for clemency preparation, budgeting should occur well in advance of final resolution of the case in the courts.

Government Failed to Prove Prior Conviction was ACCA Eligible

2011-05-11T08:52:00.000-06:00

U.S. v. Bowler, 2011 WL 1519383 (4/22/11) (Okl.) (unpub'd) - A nice convoluted, categorical-approach Armed Career Criminal Act victory. The documents did not prove the defendant had committed a delinquent act [at the age of 12!] "involving the use or carrying of a firearm, knife or destructive device." The defendant had been charged with shooting the victim, but his stipulation indicated an amended petition had been filed pursuant to which he pleaded guilty to assault and battery with a dangerous weapon. Under state law, the dangerous weapon could have been metal "knucks," which would not qualify the defendant for the ACCA. The amended petition was not in evidence. The government didn't meet its burden to prove a prerequisite violent felony conviction. Nor did the defendant's other delinquent act qualify. He was convicted of "manufacturing," not using or carrying, an incendiary device. Manufacturing did not necessarily "involve" transporting. the device.

Depositing Fraudulently Obtained Uncertified Checks Is Money Laundering

2011-05-11T08:51:00.001-06:00

U.S. v. Huff, 2011 WL 1467564 (4/19/11) (Utah) (Published) - The deposit of uncertified checks obtained through wire fraud constitutes money laundering. Possession of the check is possession of "any property" even before it's cashed or deposited. It doesn't matter whether the check clears or the defendant accesses the money or the check has a guarantee of payment.

Difficulty of Challenging Reliability of Dog-Sniff-Based Searches Now a Lot Harder

2011-05-11T08:49:00.000-06:00

U.S. v. Ludwig, 2011 WL 1533520 (4/22/11) (Wyo.) (Published) - The 10th seems to have dealt a devastating blow to challenges to the reliability of drug-sniffing dogs to establish probable cause. The 10th says a defendant cannot challenge the reliability of individual dogs if the dog has been certified. In that case, the defendant can only challenge the reliability of the credentialing organization. This is so because "canine professionals are better equipped than judges to say whether an individual dog is up to snuff." Plus using the statistics of the dog's success suggests probable cause may be reduced to a "one-size-fits-all mathematical equation" and that would be awful. Precedent and common sense are more important than percentages. And, besides, the dog's 58% success rate is enough for probable cause. The d. ct. did not clearly err in agreeing with the government expert who said the officer did not cue the dog to alert.

The 10th also holds an officer's credible visual estimation of speed establishes reasonable suspicion for a traffic stop. And the officer had reasonable suspicion to detain the defendant beyond what was needed to give a citation because: (1) the defendant didn't pull over right away; (2) there was an overpowering smell of cologne; (3) the car was registered to a third party [this factor is relevant even where the driver can supply details about the owner]; (4) the defendant's story was suspect [he drove from N.J. to San Jose, California, "the hub of the computer industry," to fix a computer server problem] [travel plans do not have to be contradictory to be relevant; it's enough that they are "bizarre"]; and (5) the defendant was supposedly exceptionally nervous. The defendant was not entitled to dismissal under Trombetta for the deletion of a video of the stop. While the video might have provided missing dialogue, comparable evidence existed: 2 other videos of the stop and the testimony of the honest eyewitness police officers. And it was not clearly erroneous to refuse to award a minor role adjustment on the grounds that the defendant was unlike the average courier, because he knew he was transporting $125,000 in cash to buy drugs.

New Book on Race, Crime and Punishment Available for Free Download

2011-05-09T12:33:00.007-06:00

According to a press release from the Sentencing Project, a new book entitled Race, Crime, and Punishment: Breaking the Connection in America has been published by the Aspen Institute with support from the Open Society Foundation. The book "explores and critiques the intersection of race and the criminal justice system," according to the release. It is edited by Keith Lawrence and includes contributions by Marc Mauer, Michelle Alexander, Eric Cadora, Blake Emerson, Ian Haney Lopez, Alan Mobley, Alice O’Connor, Jonathan Simon and Phil Thompson. It can be downloaded here.

New Criminal Pattern Jury Instructions on Website

2011-05-07T11:35:00.001-06:00

The 2011 Tenth Circuit Pattern Jury Instructions are now available on the Tenth Circuit's website for downloading here.

Two published defense victories on jurisdiction in Indian Country and venue

2011-05-06T08:58:00.001-06:00

U.S. v. Langford, 2011 WL 1368548 (4/11/11) (Okl.) (Published) - 18 U.S.C. § 1152 and the Assimilative Crimes Act do not give the federal courts jurisdiction over a non-Indian defendant charged with committing a crime in Indian country that has no human victims, in this case cockfighting. Oklahoma did have jurisdiction over the offense under its law . The 10th rejected the idea that the defendant's status as a non-Indian was a mere "technicality." It was an essential element under § 1152. There was no discussion as to whether the chickens were members of an Indian tribe.

U.S. v. Smith, 2011 WL 1367032 (4/12/11) (Okl.) (Published) - There was no venue in Oklahoma under 18 U.S.C. § 1001(a)(2) for false statements made in Minnesota about events that occurred in Oklahoma. The 10th refused to adopt a "substantial contacts" rule. In this case, the statements began, continued and ended during the interview in Minnesota, since the interview was not recorded, transcribed or otherwise preserved for use in Oklahoma. And there was insufficient evidence that the defendant violated 18 U.S.C. § 664, an embezzling statute, because the government did not prove he deprived anyone of property. The Board of a non-profit voted in its discretion to contribute to an employee profit-sharing plan. Without telling the board, the defendant, who was executive director, voided the contribution check because he was not sure there would be funding for it. There was no contractual right in the plan to collect the contributions so there was no property to be deprived of.

U.S. v. Ortiz, 2011 WL 1388789 (4/13/11) (N.M.) (unpub'd) - This amending of a prior decision provides an interesting insight into how the US Attorney's Office works, or doesn't. In the original decision, the 10th Circuit said an AUSA's improper questioning constituted prosecutorial misconduct. The government won anyway because it was found not to be prejudicial enough to warrant a new trial. Nonetheless, the government moved to amend the decision because a court finding of misconduct triggers a whole investigation by Eric Holder's folks in D.C. But if the court just says the prosecutor did something improper, that does not trigger an investigation. The 10th obligingly changed its wording to say: "the prosecutor asked an improper question that Ortiz alleges rose to the level of prosecutorial misconduct." Problem solved.

U.S. v. McConnell, 2011 WL 1388692 (4/13/11) (Okl.) (unpub'd) - The 10th remands so that the d. ct. can reconsider the defendant's claim that his appellate counsel was ineffective for failing to raise the issue of inadequate notice of a ground for upward departure [not variance]---a post-conviction firearm sale in a firearms case. The 10th noted the defendant alleged sufficient prejudice from the lack of notice because he could have impeached the government witnesses and presented an exculpatory witness and the court increased his sentence 8 months due to the new information.

U.S. v. Eskridge, 2011 WL 1388877 (Kan.) (4/13/11) (unpub'd) - Writing "2 short paragraphs" asserting an evidence-insufficiency claim constituted a waiver of the argument because it didn't adequately develop the issue. For guideline "crime of violence" purposes, under Shepard, the defendant does not have to be the one that utters the word "dwelling" at a plea hearing to find he had been convicted of burglary of a dwelling. It was enough that the judge conducting the plea hearing said the case involved a "residence" and the defendant did not disagree with that characterization.

Sanchez v. Holder, 2011WL 1446515 (4/15/11) (unpub'd) - Any offense with an intent to defraud is a crime of moral turpitude. It doesn't matter whether the fraud obtained something of value. In any event, the 10th rejected the notion that lying to get a job led to getting nothing of value because it was an even exchange of money for labor. Is that a Marxist theory or Adam Smith? Getting a job does have value, the 10th says. We all can agree with that, right?

Fournerat v. Wisconsin Law Review, 2011 WL 1366900 (4/12/11) (Okl.) (unpub'd) - The 10th throws out a lawsuit by a criminal defense lawyer against a law review. The lawyer agreed with the review's assessment that his performance in a capital trial was "amazingly inept," but he disagreed that his ineptness was due to greed or unscrupulous conduct.

2011-05-05T17:07:00.000-06:00

U.S. v. Sturm, 2011 WL 1227823 (4/4/11) (Colo.) & U.S. v. Dayton, 2011 WL 1227837 (4/4/11) (Okl.) - The 10th has decided to rehear en banc the issue whether the interstate jurisdictional element of the child porn statutes require proof a particular image traveled interstate [a difficult standard for the government] or the original or other iteration of that image did at some time do so [a much easier standard]. In the Dayton case, Judges Holmes and Holloway ruled that the former applied, stressing it was bound by U.S. v. Shaefer, 501 F.3d 1197 (10th Cir. 2007), and reversed a child porn conviction. In dissent, Judge Briscoe called for rehearing en banc. The majority called Judge Briscoe's dissent "alarmist," saying Congress broadened the jurisdictional language in 2008, so that Shaefer will have little effect in the future.

In Sturm, the 10th dealt with some other issues in an unpublished judgment. It held an intent to distribute was not necessary for a child porn receipt conviction. The jury instructions did not suggest after-acquired knowledge of the content of the materials was enough to convict. The statute requires the image, not the digital file, travels in interstate commerce. To use a crime under Rule 414 as a prior sexual molestation offense, the prior child need only be under 18, not, 14, years of age. It was okay for the d. ct. to admit a prior state child porn conviction, although the d. ct. mistakenly thought one of the factors to consider was whether the prior conviction was disputed, when the factor should be whether the defendant's propensity is disputed. For double-jeopardy purposes it didn't matter that the received materials were on a single hard drive, since they were received on different dates.

U.S. v. James, 2011 WL 1226943 (4/4/11) (Okl.) (unpub'd) - The 10th rejects the defendant's challenge to the exclusion from the speedy-trial calculation of the delay resulting from his co-defendant's mental evaluation. The delay was not unreasonable because, although the defendant was incarcerated during the delay, he did not seek release or object to the continuance or move to sever, a joint trial is preferred and the violation of the 45-day limit on the time a defendant should be committed to an examination facility under 18 U.S.C. § 4247(b) has no remedy, [isn't that comforting?].

U.S. v. Harris, 2011 WL 1289156 (4/6/11) (Colo.) (unpub'd) - The 10th affirms upward variance based in part on the defendant's "arrogance and abusive demeanor."

Stemple v. Workman, 2011 WL 1226902 (4/4/11) (Okl.) (unpub'd) - The "mere fact that the petitioner rode to the police station with police officers and was told they 'needed' to talk to him" does not lead to the conclusion the petitioner was in custody for Miranda purposes because of the clear statements at the station that the petitioner was not under arrest and the "non-coercive environment" in which the petitioner was questioned.

U.S. v. Gonzalez-Guytan, 2011 WL 1289152 (4/6/11) (Okl.) (unpub'd) - After finding the officer had reasonable suspicion to believe the defendant failed to immediately yield and pull over after another officer activated his emergency lights to chase after someone else, the 10th suggested that the subsequent traffic stop might not have been ok if the officer activating the emergency lights did not have reasonable suspicion to stop the other person.

Patterson v. Jones, 2011 WL 1314035 (4/7/11) (Okl.) (unpub'd) - The pro se petitioner waived all his issues because all he did on appeal was adopt his arguments below.

Refusing to Testify Against Co-defendant Warrants Obstruction Enhancement

2011-05-05T14:33:00.000-06:00

US v. Mollner, No. 09-4158, 2011 WL 1663596 (10th Cir. May 4, 2011) (published): Court affirms imposition of 2-level obstruction of justice enhancement on defendant convicted of bank robbery. Defendant pled guilty to bank robbery. Before his sentencing, the government filed a motion to compel the defendant's testimony at his co-defendant's trial and to grant him immunity for his testimony. Mr. Mollner stood firm and refused to testify. At sentencing, the trial enhanced his sentence for that refusal. The Court held that the present version of USSG 3C1.1 applies not only to the defendant's obstructive conduct regarding his own conviction but also to obstructive conduct involving closely related cases, such as codefendants' cases.