Friday, October 31, 2014

New Guidelines go into effect November 1, 2014

The new United States Sentencing Guidelines Manual is now available online in PDF and HTML formats.

Here is a summary of the amendments.

There are changes to some commonly used guidelines, including those affecting drug quantity, felon in possession, and alien smuggling.

Monday, October 27, 2014

Tenth discusses divisibility and the modified categorical approach, and rejects 2255 petitioner's ineffective assistance of counsel claim

U.S. v. Rodriguez, 2014 WL 5201900 (10/15/14) (Okl.) (Published) - In the context of a § 2255, the 10th discusses divisibility and the modified categorical approach. Mr. Rodriguez alleged his attorney should have argued the Texas assault statute was indivisible and therefore not amenable to the modified categorical approach. The Texas statute criminalizes both intentional and reckless conduct. If Mr. Rodriguez had been convicted of reckless conduct the conviction would not count for career offender purposes. Trial counsel acknowledged the statute was divisible, but argued Mr. Rodriguez's blanket guilty plea to the indictment, which charged both intentional and reckless assault, did not show which kind of assault Mr. Rodriguez was necessarily convicted of. The 10th had ruled that he was convicted of both kinds. The 10th pointed out counsel's strategy was not a bad one, because the almost identical argument prevailed in the Fifth Cirucit two months later in U.S. v. Espinoza, 733 F.3d 568 (2013). Also, counsel was not wrong for failing to argue indivisibility based on Descamps and Marrero, which remanded a modified categorical approach case in light of Descamps. Those cases, the 10th holds, didn't have any bearing on what statutes were or were not divisible. And the 10th had already held in U.S. v. Zuniga-Soto, 527 F.3d 1110 (2008), that the Texas assault statute was divisible. The 10th also held counsel's failure to seek certiorari could not be the basis for relief because there is no constitutional right to effective assistance of counsel for certiorari review.

Unpublished Decisions

U.S. v. Gutierrez-Borjas, 2014 WL 5151975 (10/15/14) (Col.) (unpub'd) - Imposing the 4-level enhancement for possessing a firearm in connection with another felony offense under § 2K2.1(b)(6)(B) was not plain error where Mr. Gutierrez-Borjas carried a gun hidden in his waistband while he broke into a home where his recently estranged wife was staying. It didn't matter that he didn't openly hold the gun. It is enough to violate Colorado's felony menacing statute that the defendant engaged in actions that, if discovered, would place the victim in fear. The victim does not have to actually be aware she is being threatened. The 10th acknowledged Mr. Gutierrez-Borjas's argument had "some force." So maybe the argument could be successful if preserved in district court.

Saleh v. U.S., 2014 WL 5293687 (10/17/14) (Col.) (unpub'd) - Another statement of the scary notion that if a defendant does not argue in the opening brief an error satisfies the plain error reversal standard then the defendant has waived such an argument even if the defendant raises it in the reply brief after the government claims the error was not preserved. In other words, we may have to argue plain error in our opening briefs even if we believe the issue was preserved if there's the slightest chance the 10th might see things differently.

U.S. v. Brown, 2014 WL 5304891 (10/17/14) (Ut.) (unpub'd) - In the course of rejecting Mr. Brown's claim that counsel was deficient in failing to make a particular argument against the loss amount under the fraud guidelines, the 10th says: "Counsel is expected to test problematic aspects of the government's case, but cannot be expected to run to ground every factual anomaly, particularly one retrieved post hoc from the bowels of the record."

Friday, October 17, 2014

Tenth discusses the reliability prong of FRE 702

In re: Urethane Antitrust Litigation, 2014 WL 4801253 (9/30/14) (Kan.) (Published) - In the course of finding no abuse of discretion in permitting expert testimony, the 10th insists that reliability is primarily a question of the validity of the methodology employed, not the quality of the data used in applying the methodology. It is up to the jury to evaluate the reliability of the underlying data, assumptions and conclusions.

Defense-favorable decision on fraud guidelines; other issues not preserved

U.S. v. Powers, 2014 WL 4801223 (9/29/14) (N.M.) (unpub'd) - The § 2B1.1(b)(14)(A) bump for a fraud where the defendant derives more than a million dollars in gross receipts does not apply even if the whole enterprise hauled in more than a million dollars if some of the criminally-responsible participants "earned" enough money to lower the defendant's individual take below a million dollars.

The Rule 701, lay testimony argument on appeal was not preserved below. Despite numerous objections to bank employees' testimony, none mentioned the Rule 701 issue. In your basic mortgage fraud case, it was not plain error under Rule 701 to admit hypothetical testimony by bank employees that, if the fake incomes had been lower, and the buyers truthfully said the houses were investment properties, and the bank knew the money given at closing would be going to the buyers to make the mortgage payments, the bank would not have approved the loan. The witnesses did have personal knowledge of their employers' lending practices at the time of the offenses and of the particular documents involved by the time of trial. There's nothing inherently inappropriate in asking lay witnesses to answer hypothetical questions, especially when the answers are based on personal knowledge. The questions did not call for particularly specialized knowledge, only basic math, and only relied on the witness having a limited amount of expertise by virtue of his or her position in the business, not on outside expert reports.

Mr. Powers did not preserve an objection to the admission of adoptive business records (one company keeping as business records another company's business records). He did file a proper motion in limine before trial, but the district court did not issue a definitive ruling because it denied the motion "subject to foundation being laid." Mr. Powers did not object to the relevant records at trial. So he's out of luck. Any error in admitting adoptive business records was not plain. Other circuits have adopted the adoptive-business-records doctrine and the 10th has been non-committal.

Upward variance based on speculation affirmed

U.S. v. Zamarripa-Favela, 2014 WL 4921951 (10/2/14) (Kan.) (unpub'd) - Upward variance by the USDC Kansas affirmed. The court varied in a reentry case from a range of 15-21 months to a sentence of 36 months. The district court's speculation that 4 DUI convictions meant Mr. Z-F must have driven drunk on many other occasions was okay because it could sentence Mr. Z-F based on uncharged conduct. The 10th does not address the notion that due process requires some proof of uncharged conduct. The variance was not an abuse of discretion. It was based on that speculation, the dangerousness of the 4 DUIs and Mr. Z-F's 10 reentries. The court's policy disagreement as to how the Sentencing Commission treats prior DUIs is just fine. Finally, the 10th says the court didn't need to give detailed reasons for its sentence, which seems to conflict with the Lente case, 647 F.3d 1021, which requires an explicit consideration of material arguments against an upward variance.

Convictions for unlawful grazing on public lands upheld

U.S. v. Jones, 2014 WL 4938034 (10/3/14) (Wyo.) (Published) - A handy case for the next time you represent a cattle rancher. Mr. Jones is apparently a Cliven-Bundy-type rancher. He couldn't manage to keep his cattle and other stuff off of BLM property since the early 1990's. The 10th held there was sufficient evidence to convict him of 2 counts of unauthorized grazing on public lands given: testimony by several witnesses of his longstanding history of allowing his cattle to graze without permission on public lands; BLM ranger's testimony that the ranger made Mr. Jones aware of the public land boundary line; and tire marks from a dual-wheeled vehicle like Mr. Jones's found near a large number of grazing cattle. There was also sufficient evidence Mr. Jones was guilty of unauthorized use of public lands where: testimony indicated lumber, vehicles and other stuff were left on a BLM allotment; one of the vehicles left was registered to Mr. Jones; the ranger made Mr. Jones aware of the land's public status; Mr. Jones was given 60 days to remove the stuff; he promised to do so, but he didn't.

The state's fence-out law, which apparently requires people to build fences to keep livestock out, does not apply to the BLM. Federal law reigns supreme. So Mr. Jones's proffered testimony by a sheriff that the sheriff believed the fence-out law should apply was irrelevant and, in any event, its admission would violate Evidence Rule 403 because it would cause jury confusion. Mr. Jones received due process by virtue of his trial. It didn't matter that his summons didn't bear the court's seal, that the Interior Secretary did not give written approval of the prosecution, that no administrative process was followed pre-prosecution, or that Mr. Jones received no notice a grazing violation would result in a criminal charge Can you tell this guy was representing himself?

Court finds IAC based on cross-examination of witness, but no prejudice

West v. Farris, 2014 WL 4977587 (10/7/14) (Okl.) (unpub'd) - In this § 2254 case, the 10th finds it to be deficient performance when counsel crossed a state witness about his motivation to fabricate testimony to obtain a reduced sentence without knowing this would open the door to the admission of pre-snitching, consistent statements by the witness. But it was not unreasonable for the state courts to find the deficiency non-prejudicial because counsel was able to recall the witness and cross him about inconsistencies in his testimony that counsel had avoided for fear of opening the door. Also, the 10th was fine with the state courts' finding counsel's decision to be reasonably strategic in the following circumstances: the district attorney's staff told an alibi witness who showed up pursuant to a defense subpoena that she didn't have to worry about the subpoena because only the prosecution could lock her up; she disappeared; counsel couldn't find her in the courthouse and their investigator didn't find her at home; counsel eventually decided to proceed without her because the jury already heard the petitioner's alibi statement. Who needs corroboration of a defendant's alibi after all? If you can't believe the defendant, who can you believe?

Counsel was not deficient in failing to object to special conditions of supervised release

U.S. v. Ray, 2014 WL 5032439 (10/9/14) (Kan.) (unpub'd) - The Supreme Court's decisions in the plea-bargain cases---Frye and Lafler---and in Padilla has not lowered the bar to obtain relief for ineffective assistance of counsel. Counsel did not act deficiently when counsel failed to object to the following supervised release conditions for a child porn defendant: prohibition on unsupervised contact with minors, prohibition on viewing adult porn, requirement of consent to access and examine internet-capable devices; and requirement of substance abuse treatment, where Mr. Ray used to smoke marijuana 3-6 times a week and drank alcohol every month or every other month when he was 20 years old.

Helpful Opinion on Modifying Restitution Orders

U.S. v. Grigsby, 2014 WL 5072589 (10/10/14) (Kan.) (unpub'd) - A partial victory for a defendant acting for the victim. Contrary to the district court's belief, it had the authority to modify its restitution order to change the recipient for the benefit of the minor whom Mr. Grigsby had sexually exploited for child porn purposes. The authority arises from 18 U.S.C. § 3664(k) & 3572(d)(3), which allow modification when financial circumstances change. Mr. Grigsby alleged the child's mother, who received the restitution payments for the child, was neglecting the child to the point where the state had taken custody. He proposed setting up a trust fund. The 10th Circuit's reasoning might be helpful in case a defendant wants other changes in a restitution payment schedule. The 10th just said: "We can find nothing in the restitution-payment statutes which limits the district court from modifying a restitution order" for the purposes Mr. Grigsby sought. Ordinarily the 10th might want a specific authorization, but obviously the 10th wanted to do what Mr. Grigsby asked it to do.

The district court also had authority to modify restitution payments in light of Mr. Grigsby's ongoing divorce proceedings, which might change his financial situation. On the other hand, he couldn't get his supervised release conditions modified. He hadn't appealed them and, besides, his request was a bit premature: he hadn't yet finished his 260-year sentence, which he started in 2013. Nor could Mr. Grigsby change the original restitution amount. He should have appealed that. And he lost his chance to get non-porn photos from his forfeited computer. He was given one chance and gave the photos to his wife. He'll have to fight about that in the divorce proceedings.

Tuesday, October 14, 2014

Unpublished decisions

Moreno v. Taos County Board of Commissioners, 2014 WL 4723629 (9/24/14) (N.M.) (unpub'd) - A party is not entitled to an instruction that the jury can draw an adverse inference from an opponent's failure to preserve evidence unless the failure was intentional or in bad faith. Here the district court did not clearly err in holding there was no bad faith in failing to preserve taser evidence where the county policy only required officers to preserve taser evidence if a taser was discharged in dart-mode. In this case the taser was used in drive-stun mode.

U.S. v. Lake, 2014 WL 4694914 (9/23/14) (Okl.) (unpub'd) - Another chapter in the odd Lake case. This is the case where the government mistakenly conceded in the 10th that Alleyne prohibited the drug-death enhancement under § 2D1.1(a) based on judicial fact-finding. The 10th mistakenly bought the concession. On remand Mr. Lake's guideline range went down from 135-168 to 10-16 months. His sentence did not fall as far. It went from 135 to 95 months. The district court wasn't willing to forget the death. It upwardly varied in part because the heroin Mr. Lake shared with his son's drug-addict friend "resulted in and contributed to the drug addict's death." The district court claimed it would have imposed the same sentence "notwithstanding any judicial fact-finding." The 10th found the sentence substantively reasonable without noting the apparent inconsistency of not being allowed to increase the guideline range due to judicial fact-finding but being able to increase the sentence by variance based on the same judicial fact-finding.

Sanctions imposed on tax avoiders reversed for lack of due process

U.S. v. Melot, 2014 WL 4783413 (9/26/14) (N.M.) (Published) - The 10th reverses sanctions imposed on tax avoiders. The evidence indicated the Melots had a friend file a motion to intervene in a case where the government sought an order to sell the Melots' real property to pay off tax assessments. The friend asserted he had a lien on the property. Unfortunately, this friend was living in prison, not in Hobbs, as he had claimed, and had no liens. At the end of the hearing on the matter the government sought reimbursement of its costs. The Melots' counsel responded that if Rule 11 sanctions were to be imposed the Melots were entitled to notice and an opportunity to be heard. Subsequently, the magistrate judge gave notice of a possible contempt hearing because of the Melots' deceptive lien intervention attempt. The district court, without holding the Melots in contempt, imposed sanctions: removal of Ms. Melot and her children from the property, cost reimbursement and imposition of filing restrictions. This violated due process. The Melots were not given notice or an opportunity to be heard with respect to the possible sanctions or the basis for the sanctions--i.e, that it would be based on the court's inherent authority, not Rule 11.

Tenth modifies the modified categorical approach

U.S. Trent, 2014 WL 4746294 (9/25/14) (Okl.) (Published) - An important decision about the modified categorical approach. The 10th makes it harder to avoid the modified categorical approach. First, the 10th holds that a statute is divisible and thus subject to the modified categorical approach where it refers to all state criminal offenses. For example, in this case Oklahoma prohibits two or more people from conspiring to commit "any crime." That conspiracy offense is divisible into a "finite list" of every crime in the Oklahoma statutes. It's not a hypothetical list, just a lengthy one. The court may look to the judicial documents to see which crime the defendant was convicted of conspiring to commit. In this case those documents indicate Mr. Trent was convicted of conspiracy to manufacture meth. This is a "serious drug offense" under the ACCA because it "involves manufacturing a controlled substance" under § 924(e)(2)(A)(ii), Second, the 10th holds the alternatives don't necessarily have to be "elements" in the strictest sense, despite Descamps' emphasis on that term. That is, it is okay if under state law the jury could convict someone of conspiracy without agreeing unanimously on which crime the defendant conspired to commit. The modified categorical approach may be used if the judicial documents show the prosecutor only charged a conspiracy to commit one crime, as in this case. In such a circumstance we know the jury unanimously found a conspiracy to commit one particular crime. This seems to say you use the modified categorical approach to decide whether to use the modified categorical approach. Third, the 10th says its second holding doesn't matter in this case because in Oklahoma the jury must agree unanimously on the particular crime defendants conspire to commit. So the kind of crime is always an element in the strictest sense. In short, the 10th didn't need to make the second holding, but chose to do so anyway. The second holding may prove problematic in circumstances such as convictions under California's controlled-substance statutes, which don't make the identity of the controlled substance an element and which prohibit some drugs that are not controlled substances under federal law. Judge Seymour refused to go along with the second holding, but didn't explain why. The resulting 196-month sentence was not substantively unreasonable despite the fact that Mr. Trent's ADHD lead him to his problems with the law, he was fundamentally a good person, he has not committed any violence and didn't use his gun offensively.

The 10th also summarily addresses other issues. Importantly, while not helping Mr. Trent, the 10th does say: "we caution that courts should be hesitant to admit such evidence [a prior felon-in-possession (fip) conviction to show the knowledge needed to prove a current fip charge] under [FRE Rule 404(b)] because of the great danger of unfair prejudice. Indeed, the district court would not have abused its discretion had it refused to admit the evidence." But, despite this great prejudice, the 10th, following U.S. v. Moran, 503 F.3d 1135 (10th Cir. 2007), finds no abuse of discretion in admitting the prior conviction to show Mr. Trent knew the gun was in a car he shared with others. Since the question of knowing possession was debatable in this case the prior conviction was even more probative than in Moran. Trent is of no use on appeal, but helpful for trials. Also an insufficiency-of-the-evidence argument challenging the credibility of government witnesses "is doomed to failure" in the 10th's words. And defense counsel gets a compliment: "This is one of the more imaginative arguments presented to this court," the 10th says. But the 10th nonetheless strikes a blow against imagination, holding that putting in the instructions the indictment's reference to § 924(a)(2) was okay, despite counsel's concern that a juror might look up the statute, see Mr Trent only faced a max of 10 years and be more likely to convict than if the juror knew he faced life under the ACCA. Finally, the instruction that the government was not required to use all investigative techniques available to it was okay,even though part of Mr. Trent's defense was that shoddy investigation prevented the government from finding who really possessed the gun. The instruction didn't prevent the jury from concluding the faulty investigation undermined the credibility of the government's evidence.

Wednesday, October 08, 2014

10th Circuit Job Opening

The Tenth Circuit Court of Appeals in Denver has announced it is seeking a graduate of an accredited law school to serve as Counsel to the Clerk. The position is open until filled, but preference will be given to applications received by October 24, 2014. For a full description of the position, including representative duties, salary range, qualifications, and how to apply, see the posting at the Tenth Circuit's website, here.

Tuesday, October 07, 2014

Identifying the Culprit: Assessing Eyewitness Identification

A new book on eyewitness identification is available for free download from National Academies Press. There's also an interactive infographic highlighting key points from the book.

http://www.nap.edu/catalog.php?record_id=18891&utm_source=NAP
+Newsletter&utm_campaign=af1b3dc0c3-NAP+mail+new
+2014-10-07&utm_medium=email&utm_term=0_96101de015-af1b3dc0c3-102433793&mc_cid=af1b3dc0c3&mc_eid=ec9dafac73&utm_expid=4418042-5.krRTDpXJQISoXLpdo-1Ynw.0

Blurb:

Identifying the Culprit: Assessing Eyewitness Identification (2014)
Authors
Committee on Scientific Approaches to Understanding and Maximizing the Validity and Reliability of Eyewitness Identification in Law Enforcement and the Courts; Committee on Science, Technology, and Law; Policy and Global Affairs; Committee on Law and Justice; Division of Behavioral and Social Sciences and Education; National Research Council

Description

Eyewitnesses play an important role in criminal cases when they can identify culprits. Estimates suggest that tens of thousands of eyewitnesses make identifications in criminal investigations each year. Research on factors that affect the accuracy of eyewitness identification procedures has given us an increasingly clear picture of how identifications are made, and more importantly, an improved understanding of the principled limits on vision and memory that can lead to failure of identification. Factors such as viewing conditions, duress, elevated emotions, and biases influence the visual perception experience. Perceptual experiences are stored by a system of memory that is highly malleable and continuously evolving, neither retaining nor divulging content in an informational vacuum. As such, the fidelity of our memories to actual events may be compromised by many factors at all stages of processing, from encoding to storage and retrieval. Unknown to the individual, memories are forgotten,reconstructed, updated, and distorted. Complicating the process further, policies governing law enforcement procedures for conducting and recording identifications are not standard, and policies and practices to address the issue of misidentification vary widely. These limitations can produce mistaken identifications with significant consequences. What can we do to make certain that eyewitness identification convicts the guilty and exonerates the innocent?

Friday, October 03, 2014

U.S. v. Powell, 2014 WL 4670899 (9/22/14) (Colo.) - Mr. Powell was convicted of eleven counts of uttering or possessing forged checks, in violation of 18 USC § 513(a), with respect to his deposit of checks stolen from the US mail into various bank accounts he held. He maintained on appeal that (1) the indictment was invalid for failure to charge an offense, (2) the evidence and instructions unconstitutionally amended the indictment, and (3) there was insufficient evidence to support his convictions. The Tenth rejects the facial invalidity of the indictment argument, concluding the indictment (1) identified all relevant checks with sufficient specificity to enable a future double jeopardy defense and (2) gave fair notice that the forged checks were "of" a federally insured bank operating in interstate commerce. With respect to the variance and sufficiency of the evidence arguments, the Tenth interprets the "of" in the statute to require that a forged check be "of" a drawee bank that is federally insured, not "of" such a depository bank. Because there was no evidence on a number of counts of conviction that any of the forged checks' payors, payees, or drawee banks are organizations operating in interstate commerce, the court finds the plain error standard is met as to those counts and reverses.
U.S. v. Nance, 2014 WL 4695068 (9/23/14) (OK) - Mr. Nance was convicted of multiple counts of transporting child pornography and receiving or attempting to receive child pornography. He argued that; 1) the district court erred in admitting evidence of his uncharged bad acts under Federal Rule of Evidence 404(b)(2); and 2) there was insufficient evidence for a jury to find that he attempted to receive child pornography. The 10th affirmed his conviction because; 1) the trial court gave a limiting instruction to which Mr. Nance did not object and he could have - but didn’t - ask for this instruction each time the bad act evidence was allowed; and 2) the government was not required to prove that Mr. Nance knew that the downloaded file contained child porn - rather it had to prove that he believed the file contained child porn, which it did.