Thursday, March 15, 2018

Some Good Language on Searches Incident to Arrest and Parolee Searches, But Court Ultimately Finds Seizure and Search of Cell Phone OK

US v. Pacheco, 2018 WL 1178327 (10th Cir. March 7, 2018) (published): The Court affirms Mr. Pacheco's convictions and sentence for possession with intent to distribute methamphetamine, possession of a firearm in connection with a drug trafficking crime, and felon in possession of a firearm. Mr. Pacheco challenged the search of his cell phone, the denial of his request for a jury instruction on simple possession of the drugs, and the trial court's determination of the amount and type of drugs at sentencing.

The search issue: The day before Mr. Pacheco's arrest, a Kansas City, Kansas, police officer responded to a call regarding a disturbance between two vehicles. He chased one vehicle until it left the jurisdiction. The officer later determined that the car was registered to Mr. Pacheco and there was a warrant for him for a parole violation. The next day, officers went to the address on the car's registration. They ended up entering to look for Mr. Pacheco. In the process, they looked under and between the box springs and mattress of a bed, finding meth and guns. Mr. Pacheco was found hiding behind insulation in the attic. When the officers grabbed Mr. Pacheco, he dropped a cell phone. He was arrested and removed from the house. The officers then obtained a search warrant for the house, to look for meth, guns, paraphernalia, money, and records of narcotics transactions. Relying on this warrant, officers seized numerous items, including the cell phone. The meth found in the house was determined to be about 94% "pure." DNA from the guns was analyzed and it was determined that the other three men who were in the house could be excluded as sources but Pacheco was not excluded as a source.

The officers who found the cell phone sought a warrant to search its contents. The affidavit for the warrant said that the search would have be done by a qualified computer expert in a lab and one such lab was nearby, but in Missouri. The Kansas state judge issued the warrant. The phone contained photos of a book depicting a gun like the recovered from under the mattress and text messages that arguably tied Pacheco to drug trafficking.

Mr. Pacheco challenged the seizure and search of his cell phone. The Tenth Circuit apparently accepts that the warrant did not authorize seizure of the cell phone. It also agrees that the seizure and search cannot be justified as a search incident to arrest, because Mr. Pacheco had been arrested and removed from the premises. Thus, it was not contemporaneous with his arrest. The Court also found that the "special-needs exception" for searches of probationers and parolees was inapplicable. However, the "totality-of-the-circumstances exception" saves the day for the KCK cops. Under this exception, non-parole officers can search parolees' homes without probable cause or even reasonable suspicion when the totality of the circumstances renders the search reasonable. In this case, a Kansas law provides that parolees' persons, effects, vehicle, residence and property can be searched by any law enforcement officer based on reasonable suspicion that the person violated conditions of release or parole or reasonable suspicion of criminal activity. Mr. Pacheco had acknowledged applicability of this law. He'd been arrested for violating his parole, and a magistrate had found probable cause to believe the residence contained evidence of a crime. Additionally, the Court ultimately concludes that the good-faith exception applies to the search even though it took place in Missouri. The Court also notes that the search might be ok because of the aforementioned totality-of-the-circumstances exception or because the phone and Pacheco were both located in Kansas when the warrant was issued. Accordingly, the Court affirms denial of the motion of the suppress.

Other issues: The Court also concludes that the trial court correctly denied the jury instruction on simple possession. By itself, Mr. Pacheco's decision to deny knowledge of the meth found with the gun did not automatically preclude him from seeking the instruction, but it significantly tended to undermine any evidentiary support for the instruction. There was no evidence the meth was for personal use -- it was a large quantity divided into smaller baggies, no pipe or lighter was found nearby, and Pacheco testified that he never purchased a full ounce at a time and knew nothing about the drugs under the mattress.

The trial court did not abuse its discretion in determining the amount and type of drugs attributable to Mr. Pacheco. In addition to the 32.46 grams of "ice" found under the mattress, the court relied on the testimony of a drug dealer who said he sold drugs to Mr. Pacheco on multiple occasions. The trial court accepted the low end of the this testimony rejecting a higher amount the Probation Officer attributed based on an interview with this dealer. It was also ok to include user amounts sold to Pacheco by the dealer where the dealer testified this amount could be redistributed. This was sufficient support in the record.

Court affirms conviction for in-flight assault intimidation of flight crewmember

U.S. v. Lynch, 2018 WL 706491 (10th Cir. 2/5/18) (Colo.) (published) - Affirmance of conviction of violating 49 U.S.C. 46504, which prohibits the in-flight assault or intimidation of a flight crew member or flight attendant that interferes with his or her duties. The court rejects Mr. Lynch's argument that the statute requires a specific mens rea because it finds nothing in the statutory language that requires more than the general intent that the conduct be voluntary and deliberate. Further, reading a mens rea into the statute could undermine Congress's regulatory purpose to promote airline safety. The statute is not unconstitutionally overbroad either because it sets out a content-neutral prohibition on conduct that is narrowly tailored to serve a significant governmental interest. It is not vague because it adequately informs an ordinary citizen of what constitutes criminal behavior.

The district court properly denied a decrease for acceptance because Mr. Lynch raised factual, as well as legal, challenges at trial. The court also cites Mr. Lynch's conduct right after he was removed from the plane and decides the profanity and aggression he displayed toward arresting officers [when he was likely still drunk] was not indicative of acceptance of responsibility for his actions.

Thursday, March 08, 2018

U.S. v. Snyder, 871 F.3d 1122 (9/21/17) (Wyo.Published) - With respect to Johnson and 28 USC § 2255, the 10th starts off with good timeliness and procedural default rulings. Under 28 U.S.C. § 2255(f)(3), a defendant's § 2255 motion is timely if filed within a year of "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." We all know Johnson established the "newly recognized" part of (f)(3) and Welch established the retroactive part. Nonetheless, the district court held Mr. Snyder's motion was untimely because he was not entitled to relief under Johnson. The 10th says this is not the correct approach. Section (f)(3) only refers to the defendant "asserting" a right. It doesn't require that the defendant's reliance on the asserted right be meritorious. Here Mr. Snyder asserted he was entitled to relief under Johnson and Johnson fulfills all the requirements under (f)(3).

The motion was also not precluded by procedural default, the 10th says. Mr. Snyder had cause and prejudice with respect to failing to raise his issue on direct appeal. The cause was that "no one could reasonably have anticipated Johnson," even in 2005, the time for Mr. Snyder's appeal, when the S. Ct. had yet to explicitly say the residual clause wasn't too vague as it did later in James and Sykes. Significantly, the 10th notes, Johnson said it overruled James and Sykes. And there was actual prejudice because, if Mr. Snyder is correct about Johnson's effect on his ACCA sentence, he certainly would be entitled to relief since his sentence would be above the maximum.

But, Mr. Snyder's argument falters at the merits step, according to the 10th. The district court found as a matter of historical fact that it didn't apply the residual clause when it sentenced Mr. Snyder under the ACCA. The district court found it considered Mr. Snyder's residential burglaries to be "burglaries" under the enumerated clause of 18 U.S.C. § 924(e)(2)(B)(ii), not the residual clause. The 10th affirms that finding. It explains it is possible to determine a sentencing court didn't rely on the residual clause---even when the sentencing record is unclear---by looking to "the relevant background legal environment at the time of sentencing." So, if, at the time of the sentencing, precedent said "crime Z" was a "violent felony" under the force clause, we can say the sentencing court didn't rely on the residual clause when it considered "crime Z" a "violent felony." Here, in light of Taylor, "there would have been little dispute at the time of Mr. Snyder's sentencing that his two Wyoming burglary convictions involving occupied structures fell within the ACCA's enumerated clause," not the residual clause. This is so, the 10th explains, because back in those days we used the modified categorical approach when a statute prohibited entry into both structures and vehicles. Looking at Mr. Snyder's documents showed he was convicted of entering structures, not vehicles. And there was never any mention of the residual clause with respect to Mr. Snyder's priors. So the 10th says it can't disagree with the district court's finding it didn't rely on the residual clause. Never mind Mathis might very well have nixed using the categorical approach. Never mind Mathis said it was just applying S Ct. precedent since the ACCA was created. What matters is it was perfectly okay back when he was sentenced under an unlawful approach. The 10th has used Snyder on many occasions to reject § 2255 Johnson claims regardless of whether the ACCA sentences are illegal under Mathis or other post-sentencing precedent.

Western Watershed Project v. Michael

Western Watershed Project v. Michael, 869 F.3d 1189 (9/7/17) (Wyo. Published) - The 10th revives a challenge to a Wyoming anti-environmentalist criminal statute on First Amendment grounds. The statute provides for up to a one-year prison term and a mandatory repeat-offender 10-days in jail for anyone who crosses private land without the owner's permission to access public land where he or she "collects resource data." "Collects resource data" means (1) taking a sample of material or acquiring, gathering, photographing or otherwise preserving information in any form and (2) recording a legal description or geographical coordinates of the collection locations. So, the statute covers writing notes on habitat conditions, photographing wildlife, audio recording of one's observations of vegetation or taking water samples so long as the person also records the location from which the data was collected. The district court held "collecting resource data" was not protected speech. The 10th disagrees. It holds that recording data is the protected creation of speech. It points out the data is needed to provide public input to public agencies, such as the U.S. Fish and Wildlife Service. The 10th rejects the state's claim that the statute is just regulating trespassing on private lands where trespassers don't have free speech rights. The 10th notes the violation occurs on public lands where the violator is subject to higher punishment than a trespasser would receive and there's no mens rea requirement as there is for the trespassing statute. That one aspect of the statute concerns private property does not defeat First Amendment scrutiny. The 10th cautions that its holding doesn't mean all regulations incidentally restricting access to information triggers First Amendment analysis. Nor may people challenge otherwise generally applicable laws that interfere with gathering information. Here Wyoming treats individuals creating speech differently than other folks. In the end, this doesn't mean final victory for freedom of speech. The 10th remands the case to the district court to apply a certain unstated level of scrutiny and decide if the statute survives that review.

18 U.S.C. § 3583(k) Struck Down

U.S. v. Haymond, 869 F.3d 1153 (8/31/17) (Okl. - Published) - The 10th strikes down 18 U.S.C. § 3583(k) as unconstitutional. Under § 3583(k), a defendant on supervised release who is required to register under SORNA and who commits almost any federal child sex crime, including possessing child porn, is subject to a prison term of 5 years up to life. Ordinarily the maximum prison term upon revocation of supervised release for Mr. Haymond's original Class C felony was two years under § 3583(e)(3). The 10th finds two constitutional problems with § 3583(k). First, while ordinarily the 6th Amendment doesn't apply to revocation proceedings Booker does impose limits. § 3583(k) deprives the district court of Booker discretion and requires a sentence above Mr. Haymond's minimum of zero prison time for his original offense to a 5-year mandatory minimum based on a judicial finding of fact. Second, § 3583(k) effectively turns a revocation proceeding into a new prosecution without any of the 5th and 6th Amendment protections, like the right to a jury and a finding of guilt beyond a reasonable doubt. Ordinarily, a defendant doesn't have all those protections in a revocation proceeding but § 3583(k) largely punishes the commission of a new criminal offense and requires punishment based on a judicial finding of guilt of a new offense. The maximum punishment is based on the severity of the new crime, not the original crime. The 10th severs § 3583(k) from the rest of the supervised release revocation statute.

The 10th holds that, although this was a close case, there was sufficient evidence to find by a preponderance that Mr. Haymond violated his supervised release conditions by knowingly possessing child porn. The defense expert testified there were several ways the 59 child porn images could have gotten on Mr. Haymond's phone without his knowledge or volitional act: But the evidence the 10th finds sufficient is that Mr. Haymond had nearly exclusive use and possession of the phone; 13 child porn images were accessible on the phone; and the images are child porn consistent with images that formed the basis of Mr. Haymond's original conviction [boys-and-boys or boys-and-men sexual activity]. The 10th points to the expert's testimony that he couldn't rule out the possibility Mr. Haymond saved the images to the gallery cache. The 10th finds it more likely Mr. Haymond downloaded and saved the images, rather than some automatic process caused the child porn to appear on the phone. The 10th does find the district court clearly erred when it found the expert's testimony established Mr. Haymond necessarily took some volitional act related to the gallery images resulting in the images being on the phone.

Judge Kelly dissents. He disagrees with what he considers the majority's clearly erroneous holding. He also is willing to believe § 3583(k) is still just punishing for the breach of trust related to the original conviction. He thinks the majority's reasoning would mean all revocation proceedings are subject to all aspects of the Fifth and Sixth Amendments. Judge Kelly says the 10th shouldn't "jump ahead" of the Supreme Court when it already said in Johnson v. U.S., 529 U.S. 694, 700 (2000), that supervised release revocation proceedings need not be criminal and the judge need only find facts by a preponderance. Such a philosophy would certainly cramp lower courts' ability to address the constitutionality of federal statutes.

Bank Fraud Conviction Affirmed Even Though No Loan Issued; Potential Risk of Loss Sufficient

U.S. v. Williams, 865 F.3d 1302 (8/4/17) (Kan.) (Published) - The 10th affirms a bank fraud conviction, finding sufficient evidence that Mr. Williams' misrepresentations were (1) material and (2) created a potential risk of loss to the bank. Mr. Williams applied for a loan basically posing as his father, who had much better credit than he had. The loan never was made because Mr. Williams did not come up with all the documentation the bank wanted. Nonetheless, the government presented sufficient evidence for conviction. As for materiality, the test is an objective one, that is, whether the falsehood was of a type that one would normally predict would influence the given decisionmaking body. The 10th stresses misrepresentations only have to be capable of influencing a decision, not actually influence. Here the bank ran a credit report based on the misrepresentations and the underwriter would look at things like Mr. Williams' fake credit history, income, employment history, assets, etc. Mr. Williams also used his dad's military career to try to get a VA loan, which would have been on more favorable terms than a non-VA loan. The jury could have found the bank would have denied the loan if it knew Mr. Williams' true identity and financial information. It doesn't matter that: Mr. Williams never completed the loan application or dated it; only the loan officer's assistant, not the underwriter, the actual decisionmaker, ever considered the incomplete application; or the bank knew early on that the application had misrepresentations.. There was testimony the bank "sometimes" considered incomplete applications. The lies were still "objectively" material. The assistant was told to proceed even after the lies were discovered. As for the risk of potential loss, the 10th emphasizes that all that's necessary for that element---an element not all circuits recognize---is potential risk of loss. Success, or even actual capability of success, in the fraud isn't necessary. Only a really "incompetent attempt" would prevent proof of the risk element. The test again is an objective one. Mr. Williams' lies about creditworthiness and VA loan eligibility exposed the bank to a loss risk. Mr. Williams' second attempt to bolster his application also caused a potential loss risk. That risk persisted because the bank gave Mr. Williams another 5 days to support his application after his second attempt. There was potential the bank would give him a loan he couldn't repay.

Majority Affirms Conviction; Dissent Would Have Found Jury Instruction Error Tainted Trial

U.S. v. Schwartz, 702 F. App'x 748 (7/31/17) (Col.) (unpub'd) - This majority affirmance of a pill-mill conviction isn't all that noteworthy, but Judge Bacharach's dissent is. In a packet of written jury instructions given to jurors at the beginning of trial was an instruction on how to treat Mr. Schwartz's prior felony conviction. The jurors could have had as much as 29 minutes to look at the instructions. The district court didn't realize its error until it started reading the felony conviction instruction. "This shouldn't be in here," the court said before getting to the felony conviction part . The court had that instruction taken away. The court instructed the jurors to disregard the instruction. The court denied a mistrial motion. After the verdict, the court polled the jury and the jurors assured the judge they had disregarded everything the judge told them to disregard. The majority assumes the jurors read the bad instruction at some point, but holds the error was harmless for reasons you could easily predict - jurors presumably follow instructions, the incident was a small part of the trial, the evidence was strong, etc. Plus the defendant's character witness was questioned about charges - not convictions - against Mr. Schwartz. Judge Bacharach does not buy that. He thinks evidence of a prior felony conviction, as opposed to just charges, was devastating. He relies on U.S. v. Maestas, 341 F.2d 493, 496 (10th Cir. 1965). In that case, 10th found an informant's testimony that the defendant had previously been imprisoned was so prejudicial that no jury instruction could cure the prejudice. Here the error was even more prejudicial because the court, not a witness, gave that information to the jury and that happened at the beginning of the trial, the crucial first impression tainting the next 11 days of trial. Interestingly, Judge Bacharach cites articles noting jurors will get tired and bored during a long trial. So what happens at the beginning matters more than what happens at the end of the trial. Judge Bacharach also points out the jury poll asked questions that were too vague. There was no reason for the court not to ask specifically whether they considered the fact Mr. Schwartz had a prior felony conviction. And Mr. Schwartz put up a valid defense that he talked to a lawyer and consulted regulations to ensure he was following the law.

No Reasonable Suspicion to Detain Based on Legal Possession of Shotgun

Stoedter v. Gates, 704 F. App'x 748 (8/3/17) (Utah) (unpub'd) - In this § 1983 civil rights case, the 10th holds it was clearly established the officers had no reasonable suspicion to detain Mr. Stoedter based on a tip that he was seen taking a shotgun from his car into his house. It was not against the law in Utah to possess a shotgun. The 10th affirms the nominal damage award of $1. As the 10th points out, this is meaningful because it means the defendants have to pay Mr. Stoedter's attorney fees.

Government Promise to File Substantial Assistance Motion Enforced

U.S. v. Doe, 865 F.3d 1295 (8/4/17) (state undisclosed) (Published) - The 10th enforces a government promise to exercise its good faith discretion to file a substantial-assistance motion under § 3553(e) and § 5K1.1. After the plea, Mr. Doe and a family member helped law enforcement bring down a local drug operation, risking their lives in the process. The line prosecutors recommended a substantial assistance motion to go below the 10-year mandatory minium, but a downward departure committee of the United States Attorneys Office turned them down without explanation. Mr. Doe moved for enforcement of the plea agreement on the ground that the government did not act in good faith in refusing to exercise its § 3553(e) discretion. The district court refused to even consider the motion on the grounds that an unpublished 10th decision, relying on Wade v. U.S., 504 U.S. 181, 186 (1992), precluded such a motion because the agreement left the § 3553(e) motion up to the government's discretion . There is a split in the circuits on this issue. The government's plea agreement promise included the promise to act in good faith when deciding whether to file a § 3553(e) motion. In Wade the contractual concerns were not in play. The government had made no promise to consider filing a substantial-assistance motion. In that circumstance, the Wade Court said the Constitution provided a remedy for a refusal to file such a motion only if the refusal was based on an unconstitutional motive or was not rationally related to any legitimate government end. But here the government was also bound to engage in fair dealing, that is, it must make an honest evaluation of the assistance provided, not based on considerations extraneous to that assistance. So, the 10th sets up a procedure, kind of like the Batson procedure. First, the defendant must allege bad faith, which the defendant did on valid grounds in this case. Next, the government tries to rebut with reasons for refusing to file the motion. If those reasons are facially plausible, the defendant is only entitled to a good faith review if the defendant provides a reason to question the government's justification. In this way, respect is paid to the government's discretion and contract-law principles are protected. The 10th notes, if the government doesn't want to be subjected to such interference, it can opt not to agree in a plea agreement to exercise its § 3553(e) discretion. The 10th remands for the government to take the second step in the process. In a footnote, the 10th takes a gentle swipe at the government, noting its "evolving justifications" on appeal for the § 3553(e) motion refusal. The 10th suggests, without ordering it to do so, that in determining the government's good or bad faith, the district court might want to consider that the justifications changed. The 10th decides not to address Mr. Doe's constitutional argument that might not have been preserved below.

Monday, March 05, 2018

Harte v. Board of Commissioners, Johnson County Kansas, 2017 WL 3138494 (July 25, 2017) (KS): Although a civil case, for our purposes, Judge Lucero’s discussion of Franks v. Delaware is notable. He writes that if there is substantial evidence to support a deliberate falsehood or reckless disregard for the truth and the exclusion of these statements would undermine probable cause, then the warrant is invalid. Recklessness is inferred from an omission of facts which is critical to the probable cause analysis.

Here, the officers rummaged through the family’s garbage three times. On each occasion they found moist loose-leaf tea which at first did not arouse their suspicion. Allegedly, the 2d and 3d time they found it, an officer “field-tested” it and then claimed in the search warrant affidavit that it tested “positive” for THC. Judge Lucero concludes the officers “fabricated the ‘positive’ field tests.” There was no reason to “accept the word of a government agent . . . when that agent had every motive and opportunity to dissemble.” (The officers were under pressure to put something together by April 20 to satisfy an already drafted press release lauding the success of numerous drug raids in the county.

Although the officer who tested the tea had a camera with him, he did not photograph the test results. Also the test itself precludes the conclusion that the results were “positive”. This is so because the test package says “these tests are only presumptive in nature . . . [and] will give you probable cause to take the sample in to a qualified laboratory for definitive analysis.” Thus, only an analytical lab test as the packaging directs could “yield a final, positive result.” The officers never sent the tea to a lab, so there was no evidence of positive test results. Judge Lucero says the officers’ conduct “gives rise to a reasonable inference of a classic Franks violation.”
United States v. Roberson, 2017 WL 3138434 (July 25, 2017) (OK): The panel addresses what constitutes a show of authority and when a person is detained by the use of that authority. Each panel member wrote a separate opinion.

Judge Matheson say that when officers shine takedown lights and spotlights on a car’s occupants and then approach in a way the prevents them from leaving, the officers have used their authority to detain. However, when one makes“stuffing motions” underneath the driver’s seat then the person has not submitted to that authority and in turn given the officers reasonable suspicion to get him out of the car. And when they do and then smell the marijuana wafting through the cabin, they have probable cause to search for the gun they find.

Judge Hartz believes that the officers have not put their authority into use because how else “were the officers supposed to check out the parking lot in the dark?” The officers’ “resolute” approach signaled merely that they “wished to talk”.

Judge Moritz finds that where the officers parked, their use of the lights and their approach demonstrated a show of authority under the totality of the circumstances. At the moment this happened, Roberson was unlawfully seized. The gun found in the car must be suppressed as a fruit of that illegal seizure.

Friday, March 02, 2018

Convictions Affirmed in Police-Concocted Plot

United States v. Tee, 2018 WL 721677 (10th Cir. February 6, 2018) (KS): Tee was convicted of attempted coercion and enticement to travel to engage in prostitution; interstate transportation in aid of racketeering enterprises; and money laundering. Sounds serious. It was not-the police concocted the whole thing.

Wichita police suspected some Asian massage parlors in town were really fronts for prostitution. Of course, what better way to investigate such suspicion than to arrange a series of telephone calls between Tee and police informant, ‘Lucy.’ Tee was targeted because he is Chinese, bilingual and ‘often worked as a middleman between Mandarin-speaking business owners and local vendors.’ Lucy told Tee she was a New York businesswoman interested in buying a massage parlor in Wichita. (Deuces to the Wichita police for sullying the great state of New York). At the same time the police had ‘Jenny’, an actual prostitute, ask Tee to help her sell her ‘massage’ business. Tee did not put the two ladies together so the police directed Jenny to tell Tee she had found a buyer and that it was Lucy. Tee tried to discourage Lucy from buying Jenny’s business. He told her Jenny had been arrested for prostitution and it was likely that another arrest would lead the police to close her business. Lucy insisted it was the business she wanted to buy. Tee relented and said he would help her. In their last call, Tee said he would pick her up at the airport. Later, Jenny paid Tee $100. He said it was the fee to pick up Lucy; the government said it was “a fee to broker the sale of Jenny’s prostitution business to Lucy.” Tee was arrested when he got to the airport to pick up Lucy.

He raised four issues, each of which was summarily rejected by the panel. First, Tee said he was entrapped and the evidence was insufficient to overcome that defense. The panel said the evidence showed he intended to help Lucy buy and maintain a massage parlor ‘knowing that it would intend to offer prostitution services.’ Regarding the enticement to travel, the panel believed Tee consistently encouraged Lucy to come to Wichita. Also there was evidence of his ‘past associations with massage parlors know to engage in prostitution’ and his comments showed he had experience in brokering their sales.

Second, Tee said it was plain error for the district court to allow the prosecutor to question a venire person, who appeared to be Asian-American about the impact of his ethnicity on the case - since the players were of Asian descent. Tee complained the court also let the prosecutor ask others in the venire whether the Asian American venire person’s involvement in the case would be ‘troublesome.’ The panel said the court did not plainly err because Tee could not cite to a single case that held such questions violated due process or equal protection.

Third, Tee argued the display of a website -Rubmaps- as demonstrative evidence was unfairly prejudicial. Tee had told Lucy to look at reviews on Rubmaps (which rates massage parlors according to the services not advertised) to decide which massage parlor to buy. The trial testimony was that Rubmaps’s rates sexual activity, not massages. To explain this testimony, the prosecution displayed screenshots from Rubmaps as a demonstrative exhibit. The panel said because this demonstrative exhibit helped the jury understand the website’s sexual nature its was relevant and admissible. And as Tee suggested Lucy consult the website, the jury ‘could understand that Tee had experience working with massage parlors that sell sex.’

Fourth, Tee said advertisements he prepared for a website, Backpage, constituted hearsay and were unfairly prejudicial. The panel disagreed. Tee waived his hearsay objection, and it was reasonable for the district court to conclude that any prejudice was outweighed by their probative value. After all, the advertisements highlighted the masseuses’ physical attributes and sexual qualities rather than their massage skills. A jury could conclude that Tee was an ‘entrepreneur experienced in selling houses of prostitution masquerading as massage parlors.’

Of note is Judge McKay’s dissent. The $100 Jenny paid Tee - which was police money - was the government’s evidence of money laundering. Judge McKay said as a matter of law this is not money laundering. The transaction that created the criminally-derived proceeds must be distinct from the money laundering transaction, because the money laundering statutes criminalize transactions in proceeds, not the transactions that create the proceeds. Tee was convicted of money laundering based on the same financial transaction that allegedly generated the criminal proceeds. In other words, until the $100 came into his control and possession, it did not constitute proceeds of a criminal activity and there was no evidence he used the money for any financial transactions once it was deposited into his account and became criminal proceeds.

Judge McKay also challenged the majority’s suggestion that Tee had not preserved the issue. First, Tee argued evidence of money laundering was insufficient to prove guilt. Second, even when issues are not well briefed by the parties it is the court’s duty to resolve the issues presented, correctly. Third, where an injustice is looming, federal appellate courts must resolve those issues even if not adjudicated in the lower court.

Judge McKay was puzzled by the majority’s seeming indifference to this issue. Perhaps it was because it was one of three counts for which Tee was convicted and his 18 month prison term was over. If so, that reasoning incorrectly assumes the number of convictions does not matter. Each conviction has collateral consequences - each is a “formal judgment of condemnation by the community” and imposes additional stigma and damage to the person’s reputation.

Threats Posted on Police Department's Online Complaint Form Were "True Threats" In Context

United States v. Stevens, 2018 WL 721676 (10th Cir. February 6, 2018) (OK): Stevens was convicted of 10 counts of interstate communication with intent to injure. The government alleged he posted 10 messages on the Tulsa Police Department’s online citizen complaint form. He did this after Officer Betty Shelby shot and killed Terence Crutcher, an unarmed African-American man. In the police video, he is seen raising his hands above his head and positioning himself to be frisked when Shelby shoots him.

Stevens filed a motion to dismiss the indictment on First Amendment grounds, arguing his messages were not true threats. The standard for deciding such a motion is whether a reasonable jury could find that the communications constituted true threats. A communication is a true threat when one who hears or reads it would reasonably consider that an actual threat has been made. Here a reasonable jury could find the statements to be true threats. Stevens ‘targeted messages of deadly action at Tulsa police officers’ specifically and generally. For example, one message said, “Betty is not going to get 3 years probation and a pension, she is getting a bullet through her brain.” In another he wrote, “if killing every last one of you and your families, your wives, your children is what it takes to drive that point home, so be it.” In context, these were true threats.

Mandatory Guidelines Not Subject to Vagueness Challenge

United States v. Greer, 2018 WL 721675 (10th Cir. February 6, 2018) (CO): Continuing the trend to streamline the dismissal of pending Johnson appeals, this panel decides that Johnson does not apply to the residual clause in USSG § 4B1.2(a)(2) of the mandatory guidelines. The only right recognized by the Supreme Court in Johnson was an accused’s right not to have his sentence increased under the residual clause of the Armed Career Criminal Act.

Second 2255 was "Second or Successive" Despite Intervening 3582 Motion

United States v. Quary, 2018 WL 718608 (10th Cir. February 6, 2018) (KS): Quary filed a 18 U.S.C. § 3582(c)(2) motion and was successful in getting his life sentence reduced to 420 months. He then filed a § 2255 motion - his second. He argued it was not a second or successive petition because the § 3582(c)(2) reduction was a resentencing which qualified as a new, intervening judgment. No, said the panel, it does not. Section 3582(c)(2) authorizes only a limited adjustment to an otherwise final sentence and is not a plenary resentencing proceeding. Quary does not get a certificate of appealability.

Unpublished Decisions

U.S. Yazzie, 704 F. App'x 767 (8/9/17) (N.M.) (unpub'd) - The 10th rejects the contention that the aggravated assault guideline, § 2A2.2 USSG, over-punishes offenses, such as Mr. Yazzies's, where the defendant commits assault by driving drunk and hurts people in a crash. The 10th doesn't find it troubling that Mr. Yazzie's guideline wouldn't be much worse if the people he hit died. Nor is the 10th convinced the Commission established the assault guidelines based on intentional assault, not assault through reckless driving. On the bright side, the 10th does say: "We do not foreclose the district court, in another case from choosing to impose a below-guideline sentence based on similar disproportionality arguments."

U.S. v. Zander, 705 F. App'x 707 (Utah) (unpub'd) - The 10th finds a number of sentencing errors. Most significantly, the district court violated Fed. R. Crim. P. 43(a)(3) when the defendant appeared by video rather than in person. The decision doesn't say if Mr. Zander consented or objected to the video hearing. The government conceded error. The 10th says its prior remand didn't limit the district court on what it could consider on the restitution issue. So the district court was wrong to think it did not have discretion to consider that some of the checks Mr. Zander received from the feds were for work actually performed and other checks to Mr. Zander's fake companies had nothing to do with federal grants.

U.S. v. Ivory, 708 F. App'x 449 (8/8/17) (Kan.) (unpub'd) - The district court in this case committed plain error warranting reversal when it imposed a mandatory-minimum 20-year prison term without a jury finding that at least 280 grams of crack cocaine were within the scope of Mr. Ivory's particular agreement or reasonably foreseeable to him. The district court also committed plain error when it relied on the PSR's drug-quantity findings where the PSR didn't cite anything suggesting that the quantities attributed to a co-defendant were within the scope of Mr. Ivory's conspiracy agreement.

U.S. v. Banks, 706 F. App'x 455 (8/8/17) (Kan.) (unpub'd) - The 10th says the district court erred because on resentencing it didn't make any findings upon which to base the leader/organizer enhancement. The 10th says the court's duty in this regard is "not onerous." Here the court vacated all its prior role findings and didn't replace them with new ones.

Monday, January 29, 2018

POSITION ANNOUNCEMENT: Assistant Federal Public Defender- Las Cruces 2018-02

The Federal Public Defender for the District of New Mexico is seeking two full time, experienced trial attorneys for the branch office in Las Cruces. These positions were originally advertised as temporary positions, with a term of employment not to exceed one year and one day each. These have now been converted to permanent full time positions. More than one vacancy may be filled from this announcement. Federal salary and benefits apply.

Applicant must have one year minimum criminal law trial experience, be team-oriented, exhibit strong writing skills as well as a commitment to criminal defense for all individuals, including those who may be facing the death penalty. Spanish fluency preferred. Writing ability, federal court, and immigration law experience will be given preference. Membership in the New Mexico Bar is required within the first year of employment. The private practice of law is prohibited.

Selected applicant will be subject to a background investigation. The Federal Public Defender operates under authority of the Criminal Justice Act, 18 U.S.C. § 3006A, and provides legal representation in federal criminal cases and related matters in the federal courts. The Federal Public Defender is an equal opportunity employer. Direct deposit of pay is mandatory.

In one PDF document, please submit a statement of interest and detailed resume of experience, including trial and appellate work, with three references to:

Stephen P. McCue, Federal Public Defender
Reference 2018-02 in the subject.

Writing samples will be required only from those selected for interview.

Applications must be received by February 23, 2018. Previous applicants for the temporary positions need not apply again. Your submission will be included for consideration. Positions will remain open until filled and are subject to the availability of funding.

No phone calls please. Submissions not following this format will not be considered. Only those selected for interview will be contacted.

Friday, January 19, 2018

Use of Deadly Force OK If Person Is Fleeing

Farrell v. Montoya, 878 F.3d 933 (10th Cir. 2017): In this appeal from the district court's denial of summary judgment on plaintiff's excessive force claim in a Section 1983 civil rights case, the Tenth reverses. In this case, which made the internet, NM State Police officers fired shots into plaintiff's minivan, in which five children were passengers, thankfully not hitting any of them. The Tenth Circuit held that, because the defendant was fleeing the officers when they fired the shots, she and her passengers were not "seized" at the time because they were not submitting to the officers' authority. "As there was no seizure, there was no unreasonable seizure, even if [Officer] Montoya was using deadly force." In short, if you're running away, officers get a free shot.

Thursday, January 18, 2018

Unpublished decisions

U.S. v. Kieffer, 702 F. App'x 734 (7/27/17) (Col.) (unpub'd) - Supervised release conditions, Rule 36 victory for the defense. The 10th previously vacated the district court's restitution order due to lack of proof. On remand, the district court not only eliminated restitution from the judgment, it also took out 7 special financial supervised release conditions, putting "None *" in their place. The judgment said "changes identified with asterisks." Nine months later the district court added back the 7 deleted conditions, saying it was doing so pursuant to Rule 36. The 10th decides the district court deliberately deleted the conditions because: it didn't just leave the space for conditions blank, but added "None" with an asterisk; and it made a certain amount of sense to take out the financial conditions because they were sort of related to the restitution that had been eliminated [this was true even though Mr. Kieffer never objected to those conditions]. Since the deletion was a substantive intentional change, not inadvertent, it was not a clerical error that could be rectified under Rule 36. The 10th rejected the government contention that the conditions were valid because they were orally announced at an earlier sentencing. The condition deletion took place long after that hearing and was in response to the 10th's remand, not the earlier sentencing, the 10th reasons. So the 10th orders the conditions stricken.
Judge Bacharach dissents. He believes it wasn't clear whether the conditions deletion was intentional. So, when the district court decided to add them under Rule 36, the 10th should defer to the district court's implicit determination that the deletion was an inadvertent clerical mistake.

U.S. v. Garcia-Damon, 702 F. App'x 743 (7/28/17) (N.M.) (unpub'd) - The 10th rejects procedural sentencing objections as well as Mr. Garcia's substantive reasonableness argument. Defense counsel argued the 46-month, bottom of the guideline range, sentence was unduly harsh because, under subsequently amended guidelines, Mr. Garcia's guideline range would have been 10-16, not 46-57, months. The 10th admits it finds this argument "sympathetic." The 10th, however, finds no authority to overturn the sentence solely based on the new amendments. It notes 10th precedent, Vasquez-Alcarez, 647 F.3d 973, 979 (2011), denying such a request, and an unpublished decision rejecting the argument on the grounds that otherwise the Sentencing Commission's prerogative to find an amendment non-retroactive would be undermined.

Admission of Evidence of First Wife's Death and Previous Accident to Second Wife Ok in Prosecution for Murder of Second Wife

U.S. v. Henthorn, 864 F.3d 1241 (7/26/17) (Col.) (Published) - In an appeal of Mr. Henthorn's conviction for first degree murder of his second wife, the 10th finds no abuse of discretion in the district court admitting 404(b) evidence of the suspicious death of Mr. Henthorn's first wife and his second wife previously being hit with a heavy beam. The 10th finds the evidence was relevant to prove Mr. Henthorn's plan and specific intent to kill and also to counter Mr. Henthorn's defense that his second wife accidentally fell 100 feet from a remote cliff in Rocky Mountain National Park. The 10th finds both prior incidents were "extraordinarily similar" to the charged offense. Mr. Henthorn's first wife died after they stopped alongside a remote road to change a tire that was merely low, not flat, and the car fell on top of the wife. People did CPR on her over Mr. Henthorn's protests. Mr. Henthorn made lots of inconsistent statements. A shoe print on the fender indicated someone may have pushed the car off the jack. Mr. Henthorn collected $600,000 from many life insurance policies. As for the second prior incident, in the dark at a secluded cabin, the second wife was hit with a beam while Mr. henthorn was nearby. Mr. Henhorn told inconsistent stories and had taken out life insurance for millions. The 10th notes the similarities included: remote locations with impeded communications, delayed emergency responders and reduced likelihood of accidental witnesses; Mr. Henthorn's inconsistent stories; his first wife died after 13 years of marriage, while his second wife died after 12 years of marriage; Mr. Henthorn was set to recover lots of insurance proceeds from each death; Mr. Henthorn had the women's bodies cremated; Mr. Henthorn asserted the same tragic accident defense. These similarities overshadowed the 17-year gap between the first wife's and second wife's deaths.
In the course of the decision, the 10th advises that 404(b) evidence is admissible even if it has potential to infer criminal propensity. That's okay as long as the evidence doesn't require such inferences. Here, based on the "logic of improbability," the prior similar incidents decrease the likelihood that Mr. Henthorn lacked the requisite intent, motive and plan. The 10th notes the "common sense" observation that a string of improbable incidents is unlikely to be the result of chance. The 10th finds support for the district court's conclusion that a jury could reasonably conclude Mr. Henthorn deliberately intended to kill his wives in both prior incidents. And, assuming maximum reasonable probative value and minimum prejudicial value of the 404(b) evidence, the district court did not make an obviously wrong Rule 403 balancing. Finally, the district court gave adequate limiting instructions.

Suppression Win; Officer Lacked Reasonable Suspicion to Look at Packet of Cards in Bag

US v. Saulsberry, 2017 WL 6614468 (10th Cir. 12/28/17): A defense win; the court holds that there was insufficient probable cause to expand the search of Defendant's car. Defendant pled guilty to possessing 15 or more unauthorized credit cards with intent to defraud. He reserved the right to appeal the denial of his motion to suppress cards seized from his car. An anonymous caller reported someone smoking marijuana in a black Honda with Texas plates in an Arby's parking lot. The caller said he was an Arby's employee (for convenience, the court says it will treat the caller as male). Officer Eastwood went to the Arby's and saw a dark green Honda with Texas plates. He went up to the car and tapped on the window to get the driver's attention. Defendant opened the door and Eastwood smelled burnt marijuana. Eastwood asked defendant for his license and insurance registration. Defendant gave his name but did not provide the documents or explain why he could not do so. Eastwood testified that during the conversation, the defendant was not "listening real well" and kept reaching in a bag on the floor of the car. Fortunately for Mr. Saulsberry, Eastwood did not shoot him. Rather, Eastwood told defendant to keep his hands in his lap. Another officer arrived, and Eastwood asked defendant to get out of the car and asked for permission to search the car. Defendant granted consent to search for marijuana. Eastwood found a joint and arrested Mr. Saulsberry. Eastwood then began to search the car. The court observes that the chronology of the subsequent events is not clear from the record. However, inside the bag, Eastwood found a stack of credit cards, "a lot," not a "normal amount." There was also a machine in the passenger seat that looked similar to one Eastwood had seen in a recent credit card-fraud investigation. Eastwood looked at the cards and saw they were all Capital One cards and did not have defendant's name on them. The officers then searched for more evidence of credit-card fraud. First, the caller sufficiently identified himself to be considered a citizen informant and thus, absent special circumstances, his veracity was presumed. The tip provided sufficient detail to uniquely identify the suspect car, the information was contemporaneous and firsthand, the information was corroborated, and the caller's implicit motive was the public interest, absent reason to believe otherwise. Thus, the information was sufficient to provide reasonable suspicion to investigate. However, the government failed to convince the court that probable cause supported the expanded search for credit card fraud, mainly because (for some reason) the government did not argue that Eastwood's observation of the "machine" that looked like a machine he had previously seen used for credit card fraud supported probable cause. In fact, the government admitted at oral argument that it did not rely on that observation because it was not clear when it occurred. Instead, the government relied on the number of cards. Unfortunately, the record did not support an inference that Eastwood could tell the cards in the bag were credit cards when he first saw them because he testified that he saw a "stack of cards." The government did not explain how Eastwood could know the cards were credit cards before he handled them. Mere possession of a number of cards does not provide probable cause to suspect a crime is being committed. Defendant's reaching for the bag was not sufficient to create probable cause because there was no gun in the bag, as Eastwood could immediately tell when he looked in it. Moreover, the court reiterates its concern about giving too much weight to alleged nervousness in assessing probable cause. Accordingly, the denial of the motion to suppress is reversed.

Drug Conspiracy Convictions Affirmed

US v. Rios-Morales, 2017 WL 6625518 (10th Cir. 12/28/17): The Court affirms the defendant's convictions related to a drug conspiracy. The district court properly allowed testimony regarding the defendant's involvement in a prior drug conspiracy in which the defendant traveled from Kansas to California to obtain drugs. The testimony was relevant under FRE 404(b) to prove defendant's motive to initiate the charged conspiracy as a new source of supply after the prior conspiracy ended and was relevant to prove the defendant's knowledge that the car left at his apartment by the witness and defendant's brother contained drugs and whether defendant intended to possess the drugs. The evidence was not unfairly prejudicial. The defendant raised as plain error numerous alleged instances of prosecutorial misconduct. These included: Defendant contended that the prosecutor's argument that the $300 per pound the defendant would make was a lot of money to someone paying child support argued facts not in evidence. However, a government exhibit included information about defendant's child support payments, so the prosecutor could properly refer to it. The AUSA's argument that "the only reason this conspiracy is going on is because of one person. Jose Rios-Morales" was not improper even though two other people were involved. In context, it referred to the trial testimony that defendant initiated the conspiracy. The prosecutor's reference to defendant's employment records as corroboration of a witness's testimony regarding the travel dates was not improper bolstering of the witness's credibility. It was not plainly improper vouching for the AUSA to argue that the jury could infer the witness was telling the truth because, among other things, the defendant engaged in counter-surveillance measures. It was not improper for the prosecutor to refer to the prior conspiracy without also reminding the jury of the limited purpose for admission of that evidence. Neither these nor the other claims satisfied the plain error standard. The Court rejects the defense argument that he should have been granted a mistrial based on the key government witness's alleged misrepresentations and omissions in his testimony. Basically, the Court says the witness did not lie and the defense was able to elicit all the necessary relevant testimony. Finally, the defendant asserted that the Court mishandled an incident that could have been construed as attempted witness intimidation when an unknown man was in the juror parking lot and made a couple of them nervous. The court questioned several jurors about the incident and directed them to park in a secure lot and to go to their cars in a group. The trial court did not abuse its discretion in concluding the jurors could be fair and impartial. Since there was no error, there was no cumulative error.

Prior Colorado Drug Offense is Overbroad; Application of Career Offender Guideline was Plain Error

US v. McKibbon, 2017 WL 6614572 (10th Cir. 12/28/17): Great categorical analysis win. On plain error review, the Court reverses the district court's application of the career-offender enhancement based on defendant's prior Colorado drug conviction. Colo. Rev. Stat. § 18-18-405(a)(1) criminalizes a broader range of conduct than that included in § 4B1.2(b). The Colorado statute includes "sale" of a controlled substance, which under Colorado law includes offers to sell, while the career-offender definition of "controlled substance offense" does not expressly include offers to sell. The Court rejects the government's argument that the Colorado Supreme Court "'would probably' require proof of a bona fide offer to sell controlled substances to support a conviction" because the plain language of the statute does not include the qualifier "bona fide" and there is no Colorado state law stating such a requirement. The Court also rejects the government's argument that the statute is divisible, because the Colorado Supreme Court expressly stated in State v. Abiodun, 111 P.3d 462 (Colo. 2005), that §18-18-405(a)(1) "defines a single offense."