Tuesday, May 12, 2015

100-year Sentence for Non-production Child Porn Offenses Affirmed

U.S. v. Franklin, -- F.3d --, 2015 WL 2167567 (5/11/15)(published) - Consecutive sentences totaling 100 years for five child porn offenses, including advertising, receipt, distribution, and possession -- all non-production offenses -- affirmed by the 10th Circuit. Mr. Franklin had no criminal history. The Tenth holds there was sufficient evidence to support his conviction of advertisement or notice of child porn, based on provision of images to "friends" through a website called "GigaTribe." "Advertisement" and "notice" are everyday words to be interpreted by their dictionary definitions and a rational fact-finder could conclude Mr. Franklin's child porn postings constituted advertisements or notices under 18 U.S.C. § 2251(d)(1)(A). The 100-year sentence was substantively reasonable. Mr. Franklin pointed to disparities between his sentence and those in sixteen similar cases. However, no such evidence was provided to the district court and the cases cited by Mr. Franklin on appeal lacked info about the defendants' offense levels, criminal histories, and the specific offense circumstances. Consequently, the Tenth could not determine how similar the cited cases were to his case or whether the sentencing disparities were warranted. The court rejects, under a plain error standard, the argument that the facts underlying the sentencing enhancements should have been submitted to the jury and not found by the district court. Mr. Franklin's offense level was enhanced by fifteen levels based on court-found facts concerning distribution of child porn for something of value, pattern or activity of sexual abuse or exploitation of a minor, and depiction of at least 600 child porn images.

Friday, May 08, 2015

Frequent Filer Warned

Kenney v. State of Oklahoma, Docket No. 15-6021 (10th Cir. May 5, 2015) (unpublished): On his 20+ appeal, the Tenth warns Mr. Kenney that if he files any more frivolous, malicious, or abusive appeals, he may be sanctioned and possibly restricted from further filings in the Court. Mr. Kenney has previously been restricted from filing in the Northern District of Oklahoma because he filed "a drove of frivolous lawsuits," and he was trying to circumvent the restrictions by filing in the Western District. I guess he'll have to move to another circuit now, not just across the state.

What Not To Do In a Brief

Nixon v. City and County of Denver, 2015 WL 1935251 (4/30/15) (Col.) (Published) - The 10th apparently wants to make a point to brief writers by publishing this otherwise nondescript case. The 10th excoriates Mr. Nixon's counsel, whose name is not listed, unlike what is usually done in published cases, for not explaining why the district court's decision was wrong. The 10th goes through in detail Mr. Nixon's opening brief and observes how Mr. Nixon addressed a number of issues that were either irrelevant or not contested, while not discussing why he lost the case below. The 10th also expresses unhappiness with the general nature of what might be construed as Mr. Nixon's challenge to one aspect of the district court's opinion. That challenge is accordingly waived. The 10th, ever so briefly, addresses an issue it divines Mr. Nixon may have made in one sentence under an inapposite headnote.

Tenth Agrees that District Court Committed Plain, Procedural Error at Sentencing

U.S. v. Sicairos, 2015 WL 1948434 (5/1/15) (Col.) (unpub'd) - A defense victory acquiesced in by the government. The district court varied down two offense levels from a guideline range of 151 to 188 months, did not recalculate the new range and then, without explanation, sentenced Mr. Sicairos to 188 months, the bottom of the original guideline range. This constituted procedural error warranting reversal under plain error review, the 10th decides. The 10th does not explain why this is so, but Mr. Sicairos is not complaining. On the other hand, in a footnote, the 10th unhelpfully notes that at the sentencing hearing held before November 1, 2015, the parties thought the impending reduction of offense levels for meth would result in a two-level decrease for Mr. Sicairos. But the 10th points out the 11.59 kilograms of ice would still lead to the same offense level as before the amendments took effect.

Tuesday, May 05, 2015

Supervised Release Condition of Six Months in Halfway House Affirmed

U.S. v. Woolsey, 2015 WL 1518073 (4/6/15) (Wyo.) (unpub'd) - The 10th says:"'in affirming, we pause to applaud the district judge's refusal to tolerate persistent manipulation, deceit, and criminal behavior." The 10th affirms a supervised release condition of six months in a halfway house. The 10th says such a condition does not rise to the level of a deprivation of fundamental liberty interests. So the district court didn't need as terrific a justification as it would in other circumstances, such as when familial associations are affected. The halfway house was a way to limit Mr. Woolsey's access to drugs and prevent him leaving the jurisdiction, as well as to provide him a place to live that he might not have had otherwise. The 10th concluded similar to the manner in which it began: "The sentence imposed amounted to nothing more than a condign ["much-deserved," I had to look it up] consequence for an established pattern of intransigent, oppositional behavior."

Obstruction Enhancement Upheld Based on Refusal to Give Voice Exemplar

U.S. v. Mays, 2015 WL 1544725 (4/8/15) (Kan.) (unpub'd) - The 10th upholds an obstruction-of-justice enhancement due to Mr. Mays' refusal to provide a voice exemplar. It didn't matter that he did not successfully obstruct his prosecution. He tried to.

Defendant's Waiver of Counsel Post-Plea Was Knowing, Voluntary

U.S. v. Vigil, 2015 WL 1515477 (4/6/15) (Wyo.) (unpub'd) - The 10th finds Mr. Vigil knowingly and voluntarily waived his right to counsel where the district court gave him a choice: either continue with current counsel or file the guilty-plea-withdrawal motion counsel refuses to file and continue pro se. The 10th holds that a less extensive on-the-record advisement may suffice for waivers occurring after trial than for those waivers happening before trial. The 10th treats the plea withdrawal stage as a post-trial stage. At that stage, the court didn't have to advise about the grounds needed to obtain a guilty-plea withdrawal or possible defenses or mitigating circumstances. Just the "basic facts" regarding the usefulness of counsel and the hazards of self-representation are all the defendant needs to know. Since granting the withdrawal motion was highly unlikely, the court didn't have to advise Mr. Vigil about matters relevant to trial. With these principles in mind, the court adequately advised Mr. Vigil and, besides, he had standby counsel to answer any questions he might have. Mr. Vigil did not have to be put under oath for the counsel waiver to be valid because the oath isn't even required for plea proceedings.

Giglio Doesn't Apply to Evidence Impeaching Non-critical Witness

U.S. v. Thompson, 2015 WL 1544788 (4/8/15) (Okl.) (unpub'd) - Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972),does not apply to information that only impeaches a non-critical witness, says the 10th. In this case, suppression of evidence that a government witness lied to his supervisor was not a violation of Giglio. Other witnesses testified to what the witness testified to. One witness testified to similar facts regarding the arrest and another testified about similar facts regarding the warrant preparation process and the search of the vehicle.

Capital Petitioner Denied Relief

Williams v. Trammell, 2015 WL 1600424 (4/10/15) (Okl.) (Published) - Oklahoma death sentence affirmed. The 10th holds it was reasonable to conclude there was sufficient evidence that under Oklahoma law Mr. Williams committed malice aforethought murder under the aiding and abetting theory, i.e., that he had the intent to kill and he knew his colleague in the armed robbery also had the intent to kill. Oddly, the Oklahoma Criminal Court of Appeals ("OCCA") overruled prior precedent requiring those elements. But it decided in the alternative that there was sufficient evidence of the previously required elements. So there was no due process, retroactivity problem with affirming a conviction based on previously undisclosed elements. The 10th found troubling the OCCA's new aiding and abetting definition that seemed to eliminate the need for mens rea. When addressing the old elements, Oklahoma decided it didn't matter whether Mr. Williams was the one who shot the person that died or that he intended for that particular person to be killed. It only mattered that Mr. Williams intended to kill someone during the robbery and he knew his cohort intended to kill someone. The 10th was cool with this. There was fair warning that the OCCA might make such a decision. It was not unexpected because up until Mr. Williams' appeal it was not clear one way or the other. There was sufficient evidence that Mr. Williams and his cohort jointly planned to rob the bank and to kill whoever stood in their way. That was enough for a conviction. It was unlikely Mr. Williams was ignorant of his cohort's intent to kill, given Mr. Williams' obvious intent to do so. The result of the OCCA's decision was reasonable, the 10th holds, even though its reasoning "was not altogether clear, accurate or comprehensive." It was good enough for the Antiterrorism and Effective Death Penalty Act (AEDPA).

With respect to the ineffective-assistance-of-counsel claims, the OCCA's decision was not a "model of clarity." But that's okay under AEDPA. Deference was owed to the OCCA's broad statement that Mr. Williams' claims "did not rise to the level of ineffective assistance of counsel under the Strickland standard." The 10th couldn't tell under which prong the OCCA decided the question. But deference was still owed. Mr. Williams' lawyer had said in an e-mail he "pops valium like candy just to face the day." But this did not mean Mr. Williams was completely deprived of counsel. The 10th had to look at each alleged act of deficiency and decide if it met the two prongs of Strickland. There was no need for an evidentiary hearing to determine why Mr. Williams' lawyer did what he did at trial. Under the performance prong, objective reasonableness is the standard. The lawyer's subjective reasoning doesn't matter. The OCCA could reasonably conclude counsel was not deficient for failing to object to evidence of Mr. Williams' possession of a stolen watch. That evidence was insignificant compared to the evidence of other prior crimes Mr. Williams had committed. Plus counsel used Mr. Williams' general thievery to explain why he had a wad of cash the day of the robbery. Counsel could have also thought if he objected to the watch testimony it might bring attention to it and the jury might think Mr. Williams had something to hide. Of course, this "logic" would preclude counsel from objecting to anything. It was reasonable for counsel not to object to unflattering photos of an apartment, post-autopsy photos of the victim and detailed testimony by the physician of the treatment of the deceased. They were probative of identifying Mr. Williams as the robber, of his intent to kill and the risk of death to others, respectively. Counsel's failure to object to speculative lay testimony about the cause of injuries to Mr. Williams and testimony about a witness's recanted report of Mr. Williams' admissions were not sufficiently prejudicial and were maybe even helpful to the defense. It was reasonable for counsel not to be ready to cross-examine about a prior inconsistent statement because there was only a remote possibility the witness would change his version of events. So defense counsel should feel no need to carry to the courtroom all those pesky and burdensome prior statements. The 10th refused to address counsel's failure to object to prosecutorial misconduct because Mr. Williams was not specific enough about what conduct by the prosecutor he found to be problematic.

On the penalty phase front, the 10th found Mr. Williams was raising a different complaint than what he raised in state court. He now contended trial counsel should have prepared the testimony of a particular defense expert witness better. In state court he alleged counsel should have called other witnesses. The 10th holds that this amounts to an incurable procedural default. Mr. Williams could not now go back to state court and raise the issue because of Oklahoma's successive petition bar. While Oklahoma does make exceptions to that bar for certain issues, the 10th decided the chance of the state courts making an exception for Mr. Williams' particular issue, which the 10th thought was not very compelling, was so slim it wasn't worth giving Mr. Williams an opportunity to try and raise it now.. It was not necessary for the 10th to be 100% accurate about its prediction about what the the courts would do. Trial counsel's failure to call other witnesses was not prejudicial enough because, with one exception, they would not have testified to anything different than did the two witnesses trial counsel had called: an expert and Mr. Williams' mother. The 10th says the only new testimony would have been from Mr. Williams' uncles who would have testified to how horrible it is to be in prison and how prison can reform someone. The 10th thought such testimony didn't present anything particularly novel and was more likely to be harmful because it would remind jurors that Mr. Williams' closest family members are convicted felons. All of these decisions regarding Mr. Williams' counsel claims were made without any court, state or federal, holding an evidentiary hearing.

Judge Gorsuch concurred. He thought the OCCA's discussion of the elements of aiding and abetting murder suggested strict liability might trigger the death penalty in the future. The judge felt this suggested just selling a gun to someone who later used the gun in a murder might warrant the death penalty under the OCCA's formulation. If this is what the OCCA really meant, the judge says, then it would be contravening Supreme Court law. The judge then extolls the virtues of requiring mens rea. He concurs with the majority because it seems as though the OCCA did issue an alternative holding under a conception of aiding and abetting liability that included a sufficient men rea element.

Emergency Road Block To Locate Bank Robber Did Not Violate 4th Amendment

U.S. v. Paetsch, 2015 WL 1543090 (4/8/15) (Col.) (Published) - The 10th affirms a denial of a motion to suppress in an emergency roadblock situation. A well-disguised man brandishing a gun robbed a bank in Aurora, Colorado. Amidst the cash he took was a tracker that transmitted a silent signal to the police. The tracker could be located within a 60-foot diameter. 14 minutes after the robbery, the tracker indicated the car carrying the tracker was stopped at a red light. Officers prevented the 20 vehicles containing 29 people that were stopped at the light from going anywhere. The tracker could not tell the officers which of the 20 cars had the tracker. The lead officer tried to get a homing beacon to the intersection that could pinpoint the tracker to within a 10-foot diameter. Various mishaps [officer forgot his keys to the office containing the beacon, his siren broke] caused the beacon to arrive 54 minutes after the stop. In the meantime, 29 minutes after the stop, officers pulled Mr. Patesch out of his car and onto the ground with weapons drawn, handcuffed him and sat him on the curb because he was acting "suspiciously." He shifted in his seat, repeatedly looked around and didn't keep his hands outside the car as ordered. Once the beacon arrived, it turned out the officer who brought it couldn't figure out how to use it, although it did evidence a weak signal coming from Mr. Paetsch's car. Using weapons and ballistic shields, the officers ordered all the remaining occupants to leave their cars. The officers handcuffed all those who did not have kids with them. One hour and 24 minutes after the stop, officers did a secondary search and found in Mr. Paetsch's car a bank money wrapper. Soon after, a person who knew how to use the beacon got a strong signal from Mr. Paetsch's car. They found a bunch of incriminating stuff in that car. Nonetheless, officers kept the other motorists at the intersection for another half hour until 2 hours and 18 minutes after the stop.

First, the 10th found the initial barricade to be reasonable. There was no need for individualized suspicion in these circumstances. (1) The public concern was grave. An armed robber was fleeing, representing a substantial public threat. (2) The seizure advanced the public interest well enough. There was a 5 % chance one of the cars contained the robber. This compared favorably to approved roadblocks that only captured 1.6 % or less of drivers who needed to be arrested. Plus, the officers knew for sure the barricade would be effective because the robber was one of the people stopped there. A roadblock does not have to be minimally intrusive, says the 10th, nor do officers have to use the least intrusive method. The greater the danger, the more latitude officers have. (3) The severity of the interference with individual liberty wasn't so bad: 29 people detained for 29 minutes before individualized suspicion was developed. Plus, the people were in cars, which are entitled to less protection than homes. And the officers acted with diligence, albeit incompetently. The 10th refused to consider the intrusion on the innocent motorists after Mr. Paetsch was singled out. There was enough individualized justification to remove Mr. Paetsch from his car 29 minutes after the stop. The 10th refused to include in its analysis the unexpected problems that arose getting the beacon to the scene together with a competent person. There was no evidence the lead officer should have known the delays would occur when he ordered the barricade. He expected the beacon to arrive within 30 minutes, during which time individualized suspicion of Mr. Paetsch arose.

Second, as for the detention of Mr. Paetsch after he was removed from his car, his detention was not unreasonably long. They could detain him for the actual time it took to get the beacon to locate the tracker, an hour and a half after the initial stop.

Chief Judge Briscoe concurred in the result. She did not think the officers had reasonable suspicion Mr. Paetsch was the robber when they removed him from the car. She pointed to the fact that the officers told Mr. Paetsch he was not a suspect as they handcuffed him and sat him on the curb. But, Judge Brisoce says, even if the length of his detention violated Mr. Paetsch's 4th Amendment rights, the exclusionary rule should not apply. More expansion of the good faith exception!!! The officers acted in good faith. The delay was the result of negligence, not deliberate, reckless or grossly negligent conduct, she opines.

Tenth Reverses District Court's Order Granting Suppression

U.S. v. Herrera, 2015 WL 1516267 (4/6/15) (Col.) (Published) - The 10th reverses a suppression grant based on Franks. On the bright side, the 10th holds the district court did not abuse its discretion when it held an evidentiary hearing, even though Mr. Herrera had not made a sufficient showing to require such a hearing. The 10th says: "lots of things in the law, as in life, aren't mandatory but still permissible." District courts enjoy a "fair amount of discretion in choosing the procedures in resolving pretrial motions," the 10th asserts, "in a democratic legal order built on the promise of due process and the vindication of individual rights." From this lofty perch, the opinion goes downhill for Mr. Herrera.

The district court made two errors. First, it clearly erred when it found the search warrant affidavit recklessly created the false impression that the confidential informant(CI) knew that Mr. Herrera used his Ford Escape for drug smuggling as far back as 2009. The 10th did not find anything in the affidavit that indicated that knowledge. Rather, the affidavit showed the CI knew later, when the warrant was applied for, that Mr. Herrera owned an Escape and used it for his drug resupply runs. Second, in deciding whether the affidavit established probable cause without the untrue statement, the district court mistakenly struck virtually everything the CI said. The 10th saw no good reason for the court to disbelieve whatever the CI claimed, especially since much of what the CI said was corroborated. No suppression because there was plenty of probable cause based on the CI's statements and the corroboration thereof.

Categorical Approach Applies to Determining SORNA Tier Except for Victim Age; Remand Necessary to Address Restrictive SR Conditions

U.S. v. White, 2015 WL 1516385 (4/6/15) (Okl.) (Published) - The 10th holds determining what tier level a SORNA defendant is in depends on the categorical approach except when it comes to the age of the victim. In defining Tier III and Tier II offenses in 42 U.S.C. § 16911(3) & (4), Congress requires a comparison to offenses as described in particular statutes. This indicates Congress wanted courts to review the elements of the offenses, not what the defendant's specific acts were. On the other hand, the reference in the definitions to the age of the victim, and the purpose evidenced in the legislative history to punish child sex offenders more severely, indicates the court must consider the specific circumstances to determine the victim's age. In this case, Mr. White was previously convicted in North Carolina of taking indecent liberties with a child under sixteen. Under the relevant statute, neither a sexual act nor an offensive touching was required, e.g. a graphic letter would be sufficient. All the relevant federal statutes referred to in the tier II and III definitions require a sexual act or offensive touching. Mr. White is therefore a tier I offender. The district court erred when it considered his actual conduct in assigning him to tier III. That error resulted in a higher guideline range than was appropriate.

The 10th also required a remand to address the special supervised-release conditions that prohibited Mr. White from contact with his grandchildren and nieces, absent probation approval and adult supervision. The 10th observes that a due process liberty interest in familial associations includes interests other than parental ones. How strong that interest is depends on the relationship between the offender and the children. If the relationship is custodial, then the interest would be similar to that of a parent. The less the relationship resembles a parental one, the less is the liberty interest. On remand, the district court will have to determine what the relationships are and accord a level of constitutional protection proportional to the significance of the liberty interest. The 10th reminds the court it should consider the length of time that has passed since Mr. White's prior conviction and any conduct, or lack thereof, that is predictive of his future conduct. The 10th holds that, regardless of the extent of the liberty interest involved, the district court did not improperly delegate its powers to the probation office. The supervised release term was only 5 years and the court ordered that the probation office approve contact unless Mr. White posed a safety risk and noted its expectation that the probation office would approve family members as adult supervisors.

National Federation of Independent Business v. Sibelius, 132 S. Ct. 2566 (2012) (NFIB"), otherwise known as the Obamacare case, does not change the 10th's opinion that Congress properly enacted SORNA pursuant to the Commerce Clause. The five justices in NFIB who found the Commerce Clause did not countenance the Affordable Care Act ("ACA") addressed the third area where the Commerce Clause operates: where activities substantially affect interstate commerce. But SORNA is copasetic with the Commerce Clause because it is consistent with the first and second areas the Commerce Clause operates in: regulating (1) the channels of interstate commerce; and (2) persons or things in interstate commerce. In SORNA the failure to register is coupled with interstate travel, at least in this case, which involved Mr. White traveling from one state to another without updating his registration. SORNA keeps interstate commerce free of yucky "immoral and injurious uses." The 10th doesn't buy Mr. White's contention that SORNA regulates inactivity, just as the ACA regulates the failure to get health insurance. The 10th feels that it must consider SORNA's "interstate travel" enforcement provision as well as its civil intrastate aspects.

The 10th sticks with its holding in U.S. v. Lawrance, 548 F.3d 1329 (10th Cir. 2008), that SORNA does not have an ex post facto problem, even though a number of state courts have held their sex-offender registration statutes violate the Ex Post Facto Clause. And the 10th believes SORNA is consistent with the 10th Amendment as well. SORNA doesn't conscript state officials to do anything. It merely incentivizes by conditioning federal funding on implementation of a federal mandate. It doesn't matter that Oklahoma has not implemented SORNA.

Monday, May 04, 2015

Tenth Denies Habeas Relief to Oklahoma Capital Defendant

Fairchild v. Trammell, 2015 WL 1843529 (4/23/15) (Okl.) (Published) - The 10th affirms an Oklahoma state capital conviction. The 10th holds Evans v. Ray, 390 F.3d 1247 (10th CIr. 2004), requires it to find no due process violation as a result of the Oklahoma Criminal Court of Appeals' shifting about what mens rea is required for child-abuse murder. No clearly established Supreme Court law indicates treating other child-abuse murder defendants differently with respect to mens rea would violate the Equal Protection Clause. Under Workman v. Mullin, 342 F.3d 1100 (10th Cir. 2003), no additional culpability finding by the jury is necessary to qualify a person who is convicted of felony murder for the death penalty where, as here, the defendant actually kills the victim. State law that second-degree murder is not a lesser-offense of child-abuse murder precludes a defendant from having the right to a lesser-included-offense instruction under Beck v. Alabama, 447 U.S. 625 (1986). Under 10th Circuit precedent, Littlejpohn v. Trammell, 704 F.3d 817 (10th Cir. 2013), it was okay for the judge not to answer the jury's question about whether life without parole really meant Mr. Fairchild would never be released.

The 10th refused to consider evidence presented for the first time in federal court that established the link of Mr. Fairchild's prior history of drug abuse, boxing and head injuries to organic brain damage. The state had not waived an exhaustion argument, although it had not raised an exhaustion defense, because it had not expressly waived exhaustion. So, Mr. Fairchild had to try to exhaust the new issue in state court. But the state court exercised a procedural bar to refuse to consider the issue in a successive petition. In its decision, the OCCA cited a state case that said the court could grant relief in a successive petition situation if there is a miscarriage of justice or a substantial violation of a constitutional or statutory right. Contrary to what common sense would tell you, this does not mean the OCCA had to actually consider the merits of the constitutional claim Mr. Fairchild presented. The OCCA has said it doesn't consider the constitutional merits in such a situation, and the 10th feels obligated to accept this declaration. Trevino v. Thaler, 133 S. Ct. 1911 (2013) does not apply to Oklahoma. In Trevino , the Court held it was so rare in Texas that a defendant could raise ineffective assistance of counsel on direct appeal that ineffective assistance of post-conviction counsel may provide cause for not properly raising the issue of ineffective assistance of trial counsel in post-conviction proceedings. But, unlike Texas, Oklahoma provides several months of time for the raising of ineffective assistance of trial counsel on direct appeal. That is a sufficient time so that defendants don't have to resort to post-conviction proceedings to raise ineffective assistance. And in this case it took 16 months from sentencing before the opening appellate brief was due. It didn't matter that Mr. Fairchild's appellate counsel said in the opening brief that counsel had not been able to conduct a full investigation of Mr. Fairchild's case. What matters is what Oklahoma law provides and that the public defender in other cases had regularly raised on appeal issues similar to Mr. Fairchild's. As compensation the 10th did indicate appellate counsel's plight was "sympathetic." And current 10th Circuit counsel had waived the ineffective-assistance-regarding- mitigation-evidence claim that didn't include the new organic-brain-damage evidence because counsel had not argued the issue before the 10th. And besides, there was no merit to the issue because the unamended claim contained no evidence of a causal connection of Mr. Fairchild's history of boxing and head injuries to his brain function at the time of the crime. Plus the additional boxing and drug abuse evidence trial counsel didn't present may have been considered aggravating, not mitigating, evidence by the jury.

Meth Conviction Reversed for Insufficient Evidence

U.S. v. Washington, 2015 WL 1811151 (4/22/15) (Okl.) (Published) - The 10th finds the evidence insufficient in a not atypical drug-in-the-car case. In a bag in the trunk of the car Mr. Washington was driving, officers found 14 bricks of marijuana and a receipt issued to Mr. Washington's passenger. Officers also found a "large quantity" of meth in 3 closed containers: a "Cold Eeze" box, a zipper bag and a "Green Tea Extract" bottle. There were two scales that were "not easily visible." One in a box and one designed to look like an ordinary iPhone. On the back seat was a false-bottomed container with no drugs in it. There was aluminum foil, but there were no drugs, in Mr. Washington's duffel bag. The car smelled of marijuana(!), but no one testified whether the smell was of burnt or raw marijuana. The 10th found insufficient evidence Mr. Washington knew there was a distribution level of drugs in the car. The smell of marijuana could have meant someone smoked marijuana, but it did not indicate to Mr. Washington there was enough marijuana to distribute. Similarly, the aluminum foil is something meth consumers, not meth distributors, use. Mr. Washington could not see what was in any of the closed containers. To prove this, the 10th attached photos of the opaque containers. There was no evidence Mr. Washington knew there were two barely visible scales. The 10th also disputed the government's interpretation of some of the other evidence, e.g., the 10th determined there was no evidence Mr. Washington heard his passenger lie about where they were going. In sum, the 10th says, the jury could have attributed guilt to Mr. Washington based on his presence in the car and speculation about his knowledge, but that did not constitute sufficient evidence to find guilt beyond a reasonable doubt.

Drug Convictions Affirmed

US v. Gallegos, No. 13-6236 (WD Okla, 4/30/2015)(Published) - Defendant, a bit player in a much larger conspiracy, got ounces of meth for her common-law husband, who would then sell it. She was convicted of three counts of possession with intent to distribute and one count of conspiracy and the Tenth affirmed. Held: (1) defendant forfeited her challenge to admission of coconspirator statements because she didn’t identify any specific statements that should have been excluded; (2) evidence was sufficient to support the convictions; the buyer-seller rule didn’t apply because she got the meth for hubby to distribute; (3) any variance between the charged conspiracy and what she herself conspired to do failed on plain error review because there was no reasonable probability that the outcome would have been different but for the alleged variance, and overwhelming evidence of her participation in smaller conspiracy did not seriously affect the fairness, integrity, or public reputation of the proceedings; (4) challenge to admission of testimony that a co-conspirator requested an attorney during questioning failed on plain error review because defendant couldn’t show that it prejudiced her substantial rights; (5) even assuming error as to the variance and admission of co-conspirator’s request for an attorney, effect of these errors, individually or cumulatively, did not warrant reversal under plain error review.

Remand Ordered for Restitution Recalculation

U.S. v. Howard, 2015 WL 1903339 (4/28/2015) (CO) (published): The panel affirms the district court’s loss calculations under USSG §2B1.1(B)(1) but remands because the district court’s restitution calculations were incorrect. Howard was convicted of mortgage fraud. He argued that the method used by the district court to calculate loss under §2B1.1 could not be used to calculate restitution. The court calculated loss under §2B1.1 by adding the unpaid principal balances on each loan held by the victim and subtracting the amounts recovered from sales of the properties securing the loans. Howard pointed out that this method would not reflect the actual loss to downstream noteholders, because they could have paid less than the unpaid balance to acquire the notes. The panel agreed. It said that “[a]lthough the total-loss calculation under USSG § 2B1.1 does not depend on which lender in the chain of title of a mortgage note suffered what loss, that information is necessary to avoid windfalls in awarding restitution.”

Wednesday, April 29, 2015

Disciplinary Proceedings For Lawyer

Alejandre-Galegos v. Holder, 2015 WL 1346197 (3/26/15) (unpub'd) - This case is notable because the 10th instigates disciplinary proceedings, which could result in suspension from the court's bar and restitution, for the alien's lawyer, John Reardon, The 10th details many cases where it has found Mr. Reardon's work wanting, which the 10th has used against Mr. Reardon's clients. The 10th has described Mr. Reardon's arguments as "prolix, vague, unfocused, poorly developed, incoherent and without any substance."

Tenth Confuses Departure, Variance Standards

U.S. v. Sanchez-Fragoso, 2015 WL 1321388 (3/25/15) (N.M.) (unpub'd) - In this case, the 10th says a district court should vary downward based on a defendant's family circumstances "only in extraordinary circumstances," citing USSG § 5H1.6, which applies only to departures. The Supreme Court's decision in Gall v. U.S., 552 U.S. 38 (2007), may lead one to question this holding.

No Immigration Relief for Mexican Citizen Despite Horrific Circumstances

Garcia v. Holder, 2015 WL 1296494 (3/24/15) (unpub'd) - No asylum, restriction on removal, or removal withholding under the Convention Against Torture for this Mexican citizen, despite horrible things happening to him and his family in Mexico. Gang members killed his grandmother, stepfather and ten-year-old brother by running them over with trucks. Gang members beat Mr. Garcia with a hammer and told him not to come back to Mexico. He did not qualify for relief because he did not show: (1) Mexican society viewed as a distinct social group Mexican males who resisted gang recruitment; or (2) that a public official was aware of what gang members did to Mr. Garcia and Mr Garcia's family and breached his or her legal responsibility to intervene to prevent such activity [demonstrating the police investigations were inadequate was not enough].

Certain Aliens Must Be Detained by ICE Without Bond Hearing

Olmos v. Holder, 1296598 (3/24/15) (Col.) (Published) - The AG must detain certain inadmissible or deportable aliens listed in 8 U.S.C. 1226(c) without a bond hearing after they are released from a prison or jail, even if there is a gap between release from prison or jail and detention by ICE. The 10th found the statute to be ambiguous in this regard. It could mean the government must detain those folks only when they are immediately taken into ICE custody or it could mean they must detain the aliens any time after release as well. The 10th goes through a fascinating exploration of statutory construction considerations: grammatical structure, legislative history; how subsections were referred to in other parts of the statute; paragraph structure; policy; and "flush language" [this has nothing to do with toilets, just whether the words begin at the left margin or not]. The canon of constitutional avoidance and lenity have no bearing on the issue in this case because if the statute is ambiguous then the 10th must defer to the BIA's reading of the statute, not to one that favors the alien or the constitution. In any event, mandatory detention of someone who was free for 6 days after release from prison, as in this case, didn't seem unconstitutional to the 10th. And the AG has a continued duty to detain these particular kinds of aliens even if they have been free for awhile. Missing the deadline for detaining the alien doesn't remove that duty.

Later Events Not Considered in Review of Denial of Continuance; Defendant Opened Door to Prejudicial Evidence

U.S. v. Seymour, 2015 WL 1383111 (3/27/15) (Wyo.) (unpub'd) - A cautionary preservation tale. The 10th reviews the continuance denial at the time of the denial. which was before trial. It refuses to consider matters that came up during trial because the defense did not renew its motion for a continuance in light of trial events.

In an enticement-of-a-minor case, Mr. Seymour opened the door to evidence that child-porn-type search terms and deleted child porn files were on his computer. Mr. Seymour testified he went along with the undercover agent posing as a father offering his 12-year-old daughter for sex because he was acting as a vigilante to rescue the girl. Others testified to his history of intervening to save vulnerable people and animals from harm, e.g. rape, beatings. The 10th rules Mr. Seymour put a character trait of protecting vulnerable folks at issue justifying the government countering under Fed. R. Evid. 404(a)(2).with evidence that Mr. Seymour was sexually interested in children. The government's counter evidence indicated Mr. Seymour was interested in sexual gratification, not protecting the imaginary girl. The government had no obligation to provide pretrial notice of the evidence, given the plain language of 404(a)(2). The evidence did not violate Fed. R. Evid. 403, given its probative value. Perhaps helpfully in a case where the government wants to introduce a video, the 10th says introducing a child porn video that was on Mr. Seymour's computer would have been much more inflammatory than what the government presented in this case.

There was sufficient evidence of a 924(c) offense--carrying a firearm during and in relation to a crime of violence. Enticement is a crime of violence. Mr. Seymour was "carrying" a gun by having it in his car when he went to the park to meet the girl. It didn't matter if Mr. Seymour routinely carried a gun in his console. It was "perfectly" reasonable for a juror to infer he brought the gun with him to subdue the child.

Defendants Lacked Standing to Object to Car Search

U.S. v. Ocegueda, 2015 WL 1322855 (3/25/15) (Ut.) (unpub'd) - A motion to suppress evidence found as the result of a car search fails on standing grounds. Neither the driver nor the passenger had title to the car. There was no evidence the legal owner conveyed a possessory interest to either one. Nor were the defendants able to show their arrests lead directly or indirectly to the search.

Removal Reinstatement Order Not Final While Other Proceedings Continue

una-Garcia v. Holder, 2015 WL 534839 (2/10/15) (unpub'd) - The 10th issues a ruling that essentially both parties wanted. The 10th holds that in immigration proceedings a removal reinstatement order is not final until ongoing reasonable fear proceedings are complete. Ms. Luna-Garcia appealed her removal order before immigration authorities finished deciding if she had a reasonable fear of returning to Guatemala. She was afraid she would lose her right to challenge the order if she waited for her reasonable fear proceedings to conclude. But the 10th held it had no jurisdiction to consider her case until the reasonable fear proceedings had concluded, due to the lack of finality.

Habeas Barriers Don't Fall for Innocent Defendants

U.S. v. Zaler, 2015 WL 573957 (2/11/15) Col.) (unpub'd) - Actual innocence cannot overcome the prodigious barriers AEDPA has built to relief for successive petitions. The Supreme Court's McQuiggen case allowed for innocence to overcome statute of limitations issues for first petitions only. The 10th gives no grace to innocent folks who had the audacity to file a previous petition.

Helpful Decision on Restitution; Sprint Not Entitled to Retail Value of Fraudulently Acquired Phones

U.S. v. Ferdman, 2015 WL 619629 (2/13/15) (N.M.) (Published) - Important restitution case: Mr. Ferdman pleaded guilty to acquiring some phones from Sprint by impersonating corporate account representatives after getting the corporations' account information. Sprint, the government and ultimately the judge believed restitution should be the retail, unsubsidized price of 86 cell phones, not just the cost of the phones to Sprint, plus Sprint's shipping and investigative costs. The 10th held there was an insufficient evidentiary basis for that conclusion because restitution may only equal the actual loss of the victim, not all the padding (unjust enrichment) Sprint would get under the judge's ruling. While the 10th did not rule out that a theft victim might be entitled to lost profits from lost retail sales in some cases, for that to happen there must be some evidence the defendant's theft in fact caused the victim to lose retail sales. Sprint presented no such evidence, only a 2-page, unverified letter, like a bill, concerning the retail price and other costs. But it did not show, for example, that it lost any sales because people bought Mr. Ferdman's phones instead of Sprint's or that Sprint didn't have enough phones on hand to sell other customers because of the theft. Absent such proof, something like replacement or wholesale cost is the better measure of actual loss. Plus Sprint's estimates of its investigation expenses supported by an unverified signature of a Sprint officer didn't amount to proof of actual loss. The 10th's reasoning in this regard might prove the most valuable of all for the future. The 10th said:"the likelihood that certain facts exist to confirm the estimates, no matter how probable, does not relieve the government of its burden to establish their actuality." There must be actual evidence of how each employee's time was spent pursuing the investigation in this case.

Other helpful things the court said. Loss under the Guidelines is not the same as actual loss for restitution purposes. The district court should not be a "rubber stamp" of the victim's claims. Some precision is required to determine actual loss, not speculation. If the court is uncertain, it should ask for more information or hold a hearing, but restitution unsupported by evidence "is not an option." Restitution should not include consequential or incidental damages because restitution awards are not a substitute for civil lawsuits. The 10th observed that maybe Paroline v, U.S., 134 S. Ct. 1710 (2014), the child-porn restitution case, called into question the 10th's precedent that restitution is remedial, not punitive. In Paroline, the Court explained that restitution does serve punitive purposes. This has implications for the application of Apprendi and the Ex Post Facto Clause, etc. on restitution decisions. Finally, another excellent quote:: "Undoubtedly the Mandatory Victims' Restitution Act's (MVRA's) overriding purpose is to assure that district courts fully compensate victims for actual losses they suffer. But that must not deter us from reading the MVRA as Congress wrote it and, more particularly, from requiring some proof of the actual loss that a defendant caused the victim."

Upward Departure Based on Old, Dissimilar Conduct Affirmed

U.S. v. Mangum, 2015 WL 670187 (2/18/15) (Ut.) (unpub'd) - It was permissible for the district court to consider evidence, not supported by a conviction, that Mr. Mangum sexually assaulted minors outside the 15-year window and, based on that evidence, to depart upward under USSG § 4A1.3(a)(2) for Mr. Mangum's felon-in-possession offense that involved an assault. It doesn't matter that the alleged offenses did not fit any of the categories listed under § 4A1.3(a)(2) that would justify an upward departure for under-representation of criminal history. So here, even though the sexual assaults did not constitute "similar" conduct to the instant offense under § 4A1.3(a)(2)(E), the judge could depart upward based on them anyway. The list of five upward departure bases under § 4A1.3(a)(2) is not an exclusive list. The 10th concedes that, if the district court said it was relying specifically on § 4A1.3(a)(2)(E), the 10th might have spun the sentence.

Tenth Emphasizes Enforceability of Appeal Waivers

U.S, Garcia-Ramirez, 2015 WL 676802 (2/18/15) (Col.) (Published) - The 10th publishes this 3-page decision to make sure defendants don't avoid appeal waivers based on a misinterpretation of its decision in U.S. v. Black, 773 F.3d 1113 (10th Cir. 2014). The defense tried to take advantage of Black to overcome an appeal waiver. In Black, the 10th bypassed resolving the appeal waiver issue and addressed the merits because the waiver issue was relatively complex, the government briefed the merits and the merits issue was really easily decided against the defendant. It would be wrong, the 10th holds, to grant relief to a defendant without resolving the appeal waiver issue. Otherwise, the government would lose the benefit of the waiver. So, since Mr. Garcia-Ramirez didn't establish he could avoid the waiver under U.S. v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc), his appeal was dismissed.

Tuesday, April 28, 2015

Cop Leaving Out Exculpatory Statement in Affidavit Was Not A Franks Violation

Puller v. Baca, 2015 WL 1285283 (3/20/15) (Col.) (Published) - In a § 1983 case, the 10th finds probable cause and no Franks violation. There had been a series of assaults by a group of African-American gang members targeting, attacking and robbing intoxicated white men near closing time of downtown bars in Denver. A witness told police about one of these attacks where someone yelled "Get that white boy." A witness said that Mr. Puller was part of this group and accompanied the group to the home of a woman who had used the victim's credit card. In an affidavit seeking a warrant to arrest Mr. Puller for a race-based assault, the officer did not mention that when he asked one witness, who was a little tipsy at the time of the attack, whether Mr. Puller was involved in the fight, she responded: "no, his grandma would kill him." The 10th was uncertain why the officer omitted that statement, but "believed" the omission was at worst negligent. In any event, the statement was not an unequivocal denial of Mr. Puller's presence. And, in any event, even in light of the omitted information, there was enough for probable cause that Mr. Puller was part of the group that approached the victim. Approaching was enough to help intimidate the victim and shield the physical attackers from view. By approaching Mr. Puller was not merely present. He acted affirmatively.

Sentencing Enhancements in Drug Case Affirmed

U.S. v. Palacios, 2015 WL 1245466 (3/19/15) (Okl.) (unpub'd) - Mr. Palacios's guilty plea to maintaining drug-involved premises leads to hefty enhancements. By admitting to the offense and also facilitating distribution by accepting drug money for a drug dealer on one occasion, he could be held responsible for his gun and all the drugs found in his house when it was raided, even though he was "nowhere near" the house at that time. He could be held accountable for any reasonably foreseeable activities engaged in by others at the house, including for the gun that was found in the same location where drugs and drug paraphernalia were stored.

Good Faith Saves Warrantless GPS Search; LEO Testimony About Mexican Meth Labs Supported Enhancement for Importation

US v. Hohn, Docket No. 14-3030 (April 1, 2015) (unpublished): Mr. Hohn objected to the evidence obtained by the warrantless attachment of a battery-operated GPS unit to his car. The officers testified they thought a battery-operated unit did not require a warrant, while a hard-wired unit did. The district court denied the motion, saying that even if the warrantless search was unreasonable, the officers acted in good faith. Accordingly, the motion to suppress was denied. The Tenth agreed. Officers could have reasonably relied on US v. Knotts, 460 US 276 (1983), and US v. Karo, 468 US 705 (1984), to believe that a battery operated GPS unit could be attached to defendant's car without a warrant.

In another search, Defendant's truck was searched when it was parked at a residence in which Mr. Hohn lived. The warrant was for the residence. The warrant for the residence was sufficient to allow a search of any vehicle actually or apparently owned by long-term residents of the premises.

It was ok for the government to use a composite photo of all the alleged co-conspirators for purposes of identifying them, especially since Mr. Hohn declined a limiting instruction.

The court also properly denied a motion for mistrial where (after evidence of this unrelated shoot-out was excluded pretrial) a witness inadvertently identified names in a notebook as "names of people involved in a shoot-out in Kingdom City." The judge's curative actions -- including talking to each juror individually and instructing them to disregard the statement -- was sufficient.

The two-level enhancement for "imported drugs" was supported by the evidence at sentencing. The fact that trial witnesses testified that the meth distributed in the conspiracy was obtained from individuals of Mexican origin or descent would not have been enough. However, in addition a sheriff's deputy testified the meth was of Mexican origin because meth is manufactured in larger quantities in Mexico than in the US, in Mexican "super labs"; Mexican meth is purer than US meth; and when meth is imported from Mexico, it is cut with a filler before distribution and this meth had been cut.

Restitution, Sentence Affirmed for Fraudulent Coin Dealer

US v. Burg, Docket No. 14-1211 (10th Cir. April 1, 2015) (unpublished). The Tenth affirms the 90-month sentence and $2,464,099 restitution order for a self-proclaimed "Christian coin dealer" who said on his website "My motto is 'honesty and fairness' and you can't ask for more." Amazingly, the 41 people who ordered from him expected to receive coins. He took the money but generally failed to provide the coins. He also did not file tax returns (well, in a few years he filed the documents, but with zeros in all the spaces, so the IRS considered them to not be filed). The district court was unsympathetic to his claims of poor health and expressions of remorse, and sentenced him to the 78 months for the fraud and 12 months consecutive for the tax counts, resulting in 90 months total.

Deputy Working as Mall Cop Denied Qualified Immunity for Forcible Takedown of Teen

Cook v. Peters, 2015 WL 1089267 (3/13/15) (Okl.) (unpub'd) - The 10th affirms a denial of summary judgment in an excessive-force, § 1983 suit. As he left a shopping mall, Mr Cook, a slight teenage boy, cursed at a deputy sheriff working as a security guard. The officer, who was 11 inches taller and 200 pounds heavier than Mr. Cook, arrested Mr. Cook. Mr. Cook tried to pull away, The officer took him down to the ground. Given the difference in sizes, the minimal threat the teenager posed to anyone and the minor nature of the teenager's crime (breach of the peace through the use of profane language), the law was clearly established that the forceful takedown would be excessive force in violation of the Fourth Amendment . No qualified immunity in that circumstance.

Colorado Conviction for Possessing Child Porn Is An Aggravated Felony

Serrato-Navarrete v. Holder, 2015 WL 1037309 (3/11/15) (unpub'd) - The 10th holds a violation of Colorado's child-porn-possession statute is an aggravated felony. An offense is an aggravated felony if it is child porn as described in 18 U.S.C. § 2252(a)(4)(B), which refers to depictions of a minor "engaging in" sexually explicit conduct. The Colorado statute criminalizes possession of material depicting a minor "engaging in, participating in, observing, or being used for" sexually explicit conduct. The 10th finds the verbs beyond "engaging in," such as "observing" are superfluous since they just describe the same things that are included in the "engaging in" in § 2252. In particular the 10th says a minor observing explicit sexual conduct is being "involved in and associated with" that activity, which is what "engaging in" means.

Two-Year Pretrial Detention Not a Speedy Trial Violation

U.S. v. Taylor, 2015 WL 1020605 (3/10/15) (Kan.) (unpub'd) - The 10th affirms the pretrial detention of a cocaine defendant who has been detained for two years. The 10th holds that 18 U.S.C. § 3164(b), which requires release after 90 days of detention, was not violated because the Speedy Trial Act excluded from the 90 days the 7-month government-requested, ends-of-justice continuance of the trial date. It was held against Mr Taylor that he waited to file his motion to suppress wiretap evidence from a jurisdiction other than the jurisdiction of the state court that issued the wiretap authorization until the last day he was allowed to. [Is there any other day you can file a motion?] It was okay that the government didn't start looking at what wiretap evidence it could present at trial until after the district court granted Mr. Taylor's suppression motion. It couldn't possibly anticipate the motion or, of all things, the granting of that motion. This was a complicated, multi-defendant case, the 10th says. And besides Mr. Taylor didn't "use all available means to secure an immediate trial," not even saying that he wanted such a thing. Nor was due process violated. The 10th recognized two years was a "lengthy" detention, but most of the delay was attributable to the defense with its "numerous pretrial motions" and "last-minute" filing of a motion to suppress. And there's that complexity and large number of defendants as well.

One Enhancement Reversed, One Affirmed in Drug Case

U.S. v. Henderson, 2015 WL 1059847 (3/11/15) (Okl.) (unpub'd) - A two-level enhancement under § 2D1.1(b)(1) for possessing a firearm during a drug offense was improper under U.S. v. Castro-Perez, 749 F.3d 1209 (10th Cir. 2014), where there was no physical relation between the weapon and the drug trafficking activity. The informant (CI) inquired about buying meth during the CI's purchase of a firearm. But the drug offense for which Mr. Henderson was convicted occurred months before. On the other hand, the enhancement under § 2D1.1(b)(12) for maintaining a residence for drug trafficking was supported by sufficient evidence. It didn't matter that no "tools of the trade" were found in the home. Agents witnessed "multiple parties" entering and exiting the residence in a manner consistent with drug trafficking [perhaps they skipped, rather than sauntered] and the CI bought drugs at or near the house 3 times. Although the "premises was used as a residence, the drug trafficking activities were frequent and substantial enough to warrant the enhancement." The district court was aware that it had to compare the amount of legitimate activities going on to the illegitimate ones.

APD Officers Get Partial Qualified Immunity in Backpack Sting Case

Quinn v. Young, 2015 WL 1089573 (3/13/15) (N.M.) (Published) - On qualified immunity grounds, the 10th turns aside part of a § 1983 suit involving the larceny stings Albuquerque Police were involved in for a while. The officers planted a backpack with cigarettes, beer and a laptop computer near an ATM. A couple with a young boy picked up the backpack and took it to a diner. An officer found out no one had called about an abandoned backpack. While the man ordered a hamburger, the woman opened the laptop, which displayed the APD icon. The adults were arrested and kept in jail for two days after which the charges were dismissed. The 10th emphasizes law enforcement officers are given a "wide berth" when it comes to determining if there's probable cause for an arrest. The critical question is whether the officers had enough to believe the couple had the intent to permanently deprive the owner of property that was not abandoned. The 10th rules that the officers didn't have fair warning there was no probable cause because there are no cases out there concerning a larceny sting operation. The 10th stresses there was more likely to be probable cause than in typical non-sting circumstances because the officers knew the couple knew they were not the true owners of the backpack. This is one reason non-sting cases did not set out clearly established law in the sting context. the district court, the 10th holds, evaluated the matter at too high a level of generality. General probable cause cases don't provide sufficient warning. To add insult to injury, the 10th cites an opinion by another division of the district coutrt with respect to the same sting operation and says: "That thorough, well-reasoned opinion" is how you're supposed to address the issue." Judge Vazquez found there was no probable cause, but found qualified immunity applied. The 10th remands the malicious prosecution and substantive due process claims for reconsideration because the district court did not explain why it rejected those claims. By not ruling on whether there was or was not probable cause the 10th gives officers no guidance and thus allows them to go about their sting business with impunity.

Monday, April 20, 2015

Asylum Seeker Failed to Show Membership in Socially Distinct Group

Rodas-Orellana v. Holder, 2015 WL 859566 (3/2/15) (Published) - Mr. Rodas-Orellana failed to demonstrate his proposed group---El Salvadoran males threatened and actively recruited by gangs, who resist joining because they oppose the gangs---is a socially distinct group. So he could not show he was entitled to asylum or withholding from removal due to persecution based on his membership in that group.

Tenth Reverses Grant of Habeas Relief to Arabic Speaker

Al-Yousif v. Trani, 2015 WL 968432 (3/6/15) (Col.) (Published) - The 10th reverses a habeas grant based on the petitioner's inability to understand his Miranda rights. Mr. Al-Yousif is from Saudi Arabia and his primary language is Arabic. An expert testified that Mr. Al-Yousif had limited English proficiency and had not understood his rights. Others testified he would nod and say he understood when he didn't. He read at a fifth-grade level of English, while Miranda rights require a 7th-grade level for a native speaker to understand. Before the interrogation, an officer briskly went through the rights, while holding the rights form in a way that Mr. Al-Yousif could not read along, and Mr. Al-Yousif nodded and indicated he understood. After the officer told him he could not have his uncle present, he provided some inculpatory statements. He later lead them to a dumpster containing the body of the murder victim. After another Miranda advisement, Mr. Al-Yousif asked for an attorney. The Colorado trial court suppressed the statements. But the state supreme court reversed, holding that the trial court required a deeper understanding of the implications of a waiver than Colorado law did. A suspect need only understand that: (1) he did not have to talk; (2) he could have an attorney present; and (3) if he did talk, the statements could be used against him. Whether he understood the tactical significance of the waiver was irrelevant. After reviewing the video of the interrogation, the state's highest court concluded the waiver was knowing and voluntary, The 10th presumed that finding to be correct and found Mr. Al-Yousif had not presented clear and convincing evidence to overturn it. The 10th found the state court had considered the totality of the circumstances. The 10th says: "two trial judges agreed with the petitioner, but the highest state court did not." So tough luck.

The 10th didn't have to get into the merits because it also held the petition was untimely. Equitable tolling was inappropriate, the 10th rules. Mr. Al-Yousif's habeas attorney had determined the supreme court rehearing denial on direct appeal was entered three days after it was actually entered. The attorney based that determination on the date on the document the state gave to the attorney. That document reflected when the state trial court received notice of the rehearing denial. The 10th says the attorney should have been able to figure out the actual date of the denial from available sources. It was even on Westlaw!

Unpublished Decisions

U.S. v. Becknell, 2015 WL 874398 (3/3/15) (Kan.) (unpub'd) - The 10th holds it would be reversible error in violation of Federal Rule of Evidence 704(b) for an expert to testify that a defendant in a § 924(c)(1)(A) case possessed a firearm "in furtherance of" a crime. But in this case where, as the 10th described it, the officer expert "did everything but state that inference," there is no error. The prosecutor asked the officer "expert" to discuss some of the factors he considers in determining whether a person possesses a firearm in furtherance of a drug trafficking crime. The officer detailed a description of those various factors and then immediately described the facts of the case tracking those factors. So the officer "came close to dictating the final conclusion to the jury," but still left to the jury the ultimate finding of fact, the 10th says.

The 10th doubts that the informant's information alone, which was related in a search warrant affidavit, would be sufficient to establish probable cause where the affidavit didn't discuss the informant's reliability. But, in this case, the trash searches and traffic seen at the house suggesting drug sales were enough to corroborate the informant's tip.

U.S. v. Engles, 2015 WL 896316 (3/4/15) (Okl.) (unpub'd) - Mr. Engles, a sex offender, accompanied his live-in girlfriend to her daughter's high school to update the daughter's emergency contact form to include Mr. Engles' address and to add Mr. Engles as a person authorized to pick the daughter up from school. Someone at the school recognized Mr. Engles as a sex offender. He ended up being convicted of the state offense of "loitering" at a school, which sex offenders are not allowed to do. A jury convicted him, despite his contention that he was not loitering because he was at the school for a particular purpose. His appeal is pending in state court. Meanwhile the feds kicked into gear. The district court revoked his supervised release due to his conviction and sentenced him to the high-end of the guideline range, 13 months. The 10th held it could not do anything about the unfairness of the Oklahoma conviction. That was a matter that could only be rectified in state court.

U.S. v. Evans, 2015 WL 874516 (3/3/15) (Col.) (unpub'd) - USSG § 4B1.5(b)'s enhancement for pattern of activity involving sexual conduct applied to two separate instances of producing child-porn videos, even though those activities occurred within the time frame of the indictment to which Mr. Evans pleaded guilty. Application note 4(B)(ii) makes it clear that the two separate incidents may constitute a "pattern" even if the only "pattern" is conduct involved in the offense of conviction.

Jones v. Heimgartner, 2015 WL 873057 (3/3/15) (Kan.) (unpub'd) - A procedural victory for a prisoner. Mr. Jones filed a § 2254 petition in 2012. This was almost 10 years after his state conviction became final. He contended his 2012 petition was timely because it related back to a § 2254 petition that he filed in 2003. The federal court had no record of receiving that petition. The district court dismissed the 2012 petition on the grounds that a petitioner must provide some substantiation of having sent the 2003 petition. Mr. Jones' sworn declaration that he sent it was not enough. The 10th reversed, holding that there is no additional proof requirement for petitions that never reach the federal court as opposed to those that are delayed and eventually reach the court. In each circumstance, the district court must make a factual determination whether the petitioner sent the petition by a certain date or didn't. It couldn't add a new corroboration requirement.

Speedy Trial Act Victory for Defendant

U.S. v. Hicks, 2015 WL 968423 (3/6/15) (Col.) (Published) - A Speedy Trial Act defense victory. After the district court ruled on all pretrial motions, the government filed a motion for a conference to set a trial date. The district court did not rule on that motion for almost two months. It then set the conference for two months later. The 10th holds that only 30 days were excludable due to the government's motion, which was a pro forma or administrative motion, because a hearing was not necessary to decide the motion. The motion was "under advisement" when it was filed. It only required a simple administrative act, regardless of how complicated the matters would be at the conference, especially since the defense had agreed with everything asserted in the motion at a prior hearing.

On the other hand, Mr. Hicks's constitutional speedy trial rights were not violated. (1) The length of the delay, five and a half years favored Mr. Hicks, but all the other Barker v. Wingo factors weighed against him. (2) He was responsible for much of the delay since he filed more than 40 "unique" motions, including several for extensions of deadlines and for a delay until his state prosecution was concluded. The government's part of the delay resulted from relatively benign reasons of negligence and a crowded court docket. (3) Mr. Hicks first asserted his rights near the beginning of the proceedings, but did not renew that claim until more than 3 years later. He asked for many continuances and didn't oppose most of the government's continuance requests. So the assertion factor did not favor Mr. Hicks. (4) As for the prejudice factor, a six year delay might lead to a presumption of prejudice, but only if all of that delay was solely attributable to the government. Here Mr. Hicks was responsible for much of the delay. He couldn't complain about oppressive pretrial incarceration because he was also being held on charges pending in state court. He showed no special harm from anxiety. He didn't specify what evidence he lost due to the delay. So no prejudice was shown that the 10th is willing to recognize. On balance no constitutional violation.

911 call did not violate confrontation rights; constructive amendment argument rejected

U.S. v. Edwards, 2015 WL 1296624 (3/24/15) (OK): Edwards was convicted of possession with intent to distribute methamphetamine. On appeal he raised three issues: (1) an anonymous 911 call that mentioned him by name should not have been admitted because it violated the Confrontation Clause; (2) the trial evidence and jury instructions that allowed his conviction as a principal constructively amended the indictment; and (3) the jury instruction on aiding and abetting omitted an essential element. Addressing each of these issues in turn, the panel ruled that the 911 call was admitted only to explain why the government began its investigation. The court told the jury it could use that call only for that purpose and not for the truth of any matter asserted in the call. Even assuming the court shouldn’t have let the jury hear the call that error was harmless because the evidence against Edwards was “quite damning.” Regarding Edwards’ constructive amendment argument, the panel said only if it found that the indictment was insufficient to charge him in the alternative as a principal could it rule that the indictment was constructively amended. Since the indictment sufficiently charged him as an aider and abettor and as a principal, Edwards’ argument was without merit: the indictment charged Edwards and his co-defendant Washington with “aiding and abetting one another.” The panel interpreted this phrase to mean that the grand jury believed Edwards could have committed the substantive offense by (a) aiding and abetting Washington, making Washington the principal; (b) Washington aiding and abetting Edwards, making Edwards the principal or (c) both Edwards and Washington possessing the methamphetamine with the intent to distribute it which made them both principals and aiders and abettors. Finally, the panel found the jury instructions were correct statements of the law. Even though the instructions did not follow the circuit’s pattern instructions (“district courts are by no means required to follow pattern instructions verbatim”), they correctly instructed the jury on the elements of the substantive offense and aiding and abetting.

Defendant may seek safety-valve relief at sentencing on remand

U.S. v. Figueroa-Labrada, 2015 WL 1296563 (3/24/15) (OK): In Figueroa, the panel decided as a matter of first impression that § 3553(f)’s safety-valve is available to an accused, who did not cooperate or seek safety-valve relief prior to his initial sentencing hearing, but instead sought to satisfy the safety-valve requirements for the first time on remand before his resentencing. Using the plain text of § 3553(f), the panel concluded that when an accused gives information to the government for the first time on remand, but before the resentencing hearing, a district court must consider that information in determining his eligibility for a safety-valve sentence. The panel also found that the district court’s error was not harmless.

A case to put in the ‘reciprocal sauce’ folder.

U.S. v. Huff, 2015 WL 1639520 (4/15/2015) (KS) (published): The district court granted Huff’s motion to suppress because the officers did not have probable cause to believe he had committed or was committing a crime when they took him out of his car and arrested him. But the court changed its mind after the government filed a motion to reconsider. The government said that it now could point to a specific municipal ordinance Huff had violated when the officers took him out of the car. Huff said the court couldn’t reconsider its decision because the government could have told the court of that ordinance earlier. Unpersuaded, the court reconsidered its decision and denied the motion to suppress. On appeal Huff argued the court should not have considered the government’s reconsideration motion. The panel acknowledged that the government did not have a valid excuse for not making the local ordinance argument earlier. In some circuits, like the 11th and D.C., the government would have been out of luck. However, the panel said, it would not be fair to punish the officers for their righteous arrest when it was the prosecutor or the court that made the error. It didn’t matter if the officers had the specific ordinance in mind when they arrested Huff. The district court could consider and grant the government’s reconsideration motion because ultimately what mattered was that the officers had probable cause to arrest Huff.

Practice tip: When you want to add arguments to a motion the court just denied, file a motion to reconsider and point out that it would undermine the constitutional rights of all, your client included, if law enforcement (or the prosecutor) were allowed to get away with what they did. If nothing else those arguments should be preserved for appeal.