Wednesday, May 18, 2016

US v. Medlock, No. 15-501 (unpublished): The Tenth affirms the district court's grant of a new trial for the defendant based on his trial counsel's ineffective assistance. Mr. Medlock was charged with 18 counts of bank fraud and money laundering; he was convicted of 10 counts of bank fraud and 3 counts of money laundering, and acquitted of 5 counts of bank fraud. He moved for a new trial, arguiing his trial counsel was ineffective for failing to investigate. Mr. Medlock bought Klutts Equipment. In the course of business, he obtained loans from a bank, ONB, and granted ONB a security interest in Klutts assets, including accounts receivable. He was required to make payments into a lockbox account at the bank. Klutts became delinquent, and ONB sent a demand letter. Worried that ONB might freeze the account, Mr. Medlock consulted with attorney Bedford, who advised Medlock to open another account so Klutts could continue to operate. Medlock did so, and ONB did freeze the lockbox account a month later. After Klutts' default, ONB sued and obtained a $2.5 million judgment against Medlock personally and a receiver was appointed for the business. ONB then met with federal investigators, and the government indicted Mr. Medlock, alleging he had defrauded ONB by divering 15 payments made on accounts receivable away from the lockbox account and into other accounts. Mr. Medlock asserted that 1) the payments were not accounts receivable by Klutts but were commission for his personal work as a broker and 2) he created the other accounts based on advice of counsel. Although he provided detailed information regarding the commissions, his attorneys did not investigate in any way or even elicit information from Medlock and other witnesses at trial. As to the second defense, Bedford unexpectedly entered an appearance the night before trial, and on the morning of trial, the attorneys told Mr. Medlock they would not present the advice of counsel defense. The Tenth Circuit agreed with Mr. Medlock's new counsel and the district court that Mr. Medlock's trial counsel were constitutionally ineffective and he was prejudiced. Moreover, the Court rejected the government's claim that Mr. Medlock had to prove prejudice regarding each of the 13 counts of conviction because there was a reasonable probability that trial counsel's errors altered the evidentiary landscape.
Rachel v. Troutt, No. 15-6104 (published): The Tenth holds that the district court should have given the pro se prisoner additional time to respond to the defendants' motion for summary judgment in his civil suit alleging he received inadequate medical care. The prisoner was given 21 days to seek discovery, obtain and review responses that were not even due within the 21-day period, and respond to the summary judgment motion. Mr. Rachel had access to the prison law library for only a few hours each week. Accordingly, he asked for additional time to respond. The district court did not rule on the motion until the day the response was due, so Mr. Rachel had no choice but to respond without the benefit of the requested discovery. He intended to supplement the pleading when he received the requested discovery, but the defendants did not respond. Even though Mr. Rachel had not had any chance to conduct discovery, the magistrate judge recommended the district judge deny the motion for an extension and grant summary judgment to the defendants, in part because Mr. Rachel had not provided evidence of any deficiencies in his medical care or of the prison officials' deliberate indifference. The district court adopted the recommendation. The Tenth Circuit reversed, finding that the district court abused its discretion in denying the extension motion and that Mr. Rachel had shown good cause. However, it briefly visited other issues raised on appeal, and denied most of those.

Friday, March 11, 2016

Divided Panel Affirms Dismissal of Civil Rights Suit in Airport Incident

Shimomura v. Carlson, 2015 WL 9466899 (12/29//15) (Col.) (Published) - A split 10th affirms dismissal on qualified immunity grounds of a § 1983 challenge to an arrest. Mr. Shimomira got into a heated discussion with a TSA Agent because an agent was testing his medication with a sampling strip. As he left to catch a plane, the agent followed him. Behind her followed a Denver police officer. At some point Mr. Shimomura' stopped and his roller bag went in the agent's direction. The agent moved suddenly and Mr. Shimomura walked away more rapidly than before. The officer arrested Mr. Shimomura for third degree assault. That offense requires an intentional or reckless mens rea and bodily injury. The 10th finds that probable cause for the arrest was arguable, which is all it takes to qualify for qualified immunity. The video of the incident did not show the bag hitting the agent. But, the 10th says, the officer had a closer view and a different angle than the video camera and he could have seen enough to reasonably think the bag hit the agent causing some slight physical injury or pain and that Mr. Shimomura moved the bag intentionally or recklessly. It didn't matter if he had an innocent explanation for picking up his pace. The 10th holds Mr. Shimomura's detention for 90 minutes constitutes an arrest as a matter of law. That holding works against Mr. Shimomura The 10th finds the agent's alleged withholding of exculpatory evidence and fabrication of evidence was irrelevant because it took place after the arrest.

Judge Tymkovich dissents. He feels that there was a disputed factual issue to be resolved: whether the officer could have reasonably perceived evidence of intent or recklessness or of bodily injury. The evidence did not definitively settle what the officer could see from his vantage point. The judge finds it dubious that anyone from any angle could have reasonably thought the agent felt pain. The issue should be resolved by a jury, the judge contends.

Denial of Civil Rights Suit Affirmed

Jones v. Norton, 809 F.3d 564 (12/29/15) (Ut.) (Published) - The 10th affirms a denial of § 1983 relief in a pursuit and shooting case. The 10th finds a video disproved the plaintiffs' contention that Mr. Murray, the deceased, momentarily halted in response to an officer's command. So there was no seizure governed by the 4th Amendment. Nor, the 10th says, was there submission that would evidence a seizure when Mr. Murray ran towards the officer and fired shots at him. The 10th also does not find evidence supporting the plaintiffs' position that the officer shot Mr. Murray, rather than Mr. Murray shooting himself, as the officer claimed. Mr. Murray died from a contact wound, at the time of the shooting the officer was seen more than 100 yards away where his bullet casings were found, and the officer had no blood on him. The 10th was unimpressed by the fact that to kill himself, Mr. Murray would have had to use his left hand and he was right-handed. The 10th finds no due process violation from the officer shooting at Mr. Murray because Mr, Murray fired first. Nor does the 10th see any problem with the manner of officers' approach to Mr. Murray after he was shot because Mr. Murray was unconscious and so unaware of the officers' behavior.

The 10th rules it was not an abuse of discretion for the district court to find none of the sued city and state officers had a duty to preserve evidence that ended up disappearing or not being collected, e.g., Mr. Murray's gun and the shooting officer's gun The 10th says an FBI agent and the chief of the city police were the people with the most obvious responsibility to preserve the evidence and they weren't sued. The 10th finds nothing wrong with the district court's conclusion that no prejudice was shown as the result of an officer's removing Mr. Murray's clothes, losing samples and tampering with the body, including putting his fingers in the bullet wounds. The 10th acknowledges the officer's actions were at best sloppy and unorthodox, and at worst suspicious, but not grounds for relief. The 10th also holds the Ute Treaty does not provide rights that can be enforced through § 1983. The 10th finds no evidence of racial animus in the pursuit of Mr. Murray, despite the officers' knowledge of Mr. Murray's race and the racial tension in the local culture.

Unpublished Decisions

U.S. v. Luster, 2015 WL 9463102 (12/28/15) (Kan.) (unpub'd) - Another § 3582(c)(2) motion fails due to Justice Sotomayor's concurrence in Freeman and the 10th's strict interpretation of it. It didn't matter if the judge's statements at the sentencing hearing and the judge's statement of reasons might indicate the Rule 11(c)(1)(C) sentence was based on a particular guideline range that had been lowered. All that matters is what the plea agreement said and it said nothing about a guideline range.

Tennyson v. Raemisch, 2015 WL 9487908 (12/30/15) (Col.) (unpub'd) - Another prisoner plaintiff's disturbing claims bite the dust. The 10th holds Mr. Tennyson cannot get relief for the prison depriving him of hygiene products. He did not note any injury that resulted from that deprivation. No relief also where a prison doctor stopped prescribing Zantac for Mr. Tennyson even after Mr. Tennyson told the doctor he would be "in pain all the time" without the medication. The 10th says Mr. Tennyson's warning did not put the doctor on notice that the resulting pain and discomfort from the lack of Zantac would rise to the level necessary for an Eighth Amendment violation. "Not every twinge of pain puts a medical professional under a constitutional obligation to act," the 10th assures us.

Jolliff v. Corrections Corporation of America, 2015 WL 9466839 (12/29/15) (okl.) (unpub'd) - The 10th holds that Mr. Jolliff did not sufficiently exhaust his administrative remedies, even though he never got a response to his initial grievance. Under the corrections department's policy, Mr. Jolliff was obligated to file another grievance complaining about the non-responsiveness. Since he did not do that, he's out of luck.

Petitioner Gets No Relief from Life Sentence Despite Trial Counsel's Failure to Warn Him of Consequences of Rejecting Plea Offer

Milton v. Miller, 2016 WL 502867 (2/9/2016) (OK): In Mr. Milton's first appeal to the 10th Circuit, the court concluded that the Oklahoma appellate court’s ineffective assistance analysis was contrary to clearly established federal law and thereby ruled that Milton had overcome the bar in 28 U.S.C. § 2254(d)(1). 744 F.3d 660, 669-70 (10th Cir. 2014). The court then sent his habeas petition back to the district court for an evidentiary hearing. Unfortunately, after the evidentiary hearing, the panel did not see things Milton’s way. Basically Milton argued that his appellate attorney on direct appeal was ineffective for not raising an ineffective assistance of trial counsel issue. Milton had been charged with drug trafficking and a drive-by shooting. He said that the prosecutor had made several offers to his trial lawyers before the preliminary hearing but they did not relay them to him. The testimony at the evidentiary instead showed that Milton had been told of the offers. However, one of his trial lawyers did not tell him that if Milton succeeded in getting the drive by shooting charge dismissed at the preliminary hearing the prosecutor said he would seek the mandatory life without parole sentence for the drug trafficking case. Milton argued that without knowing about the prosecutor’s warning he believed he could reject the offers, defeat the drive-by shooting charge at the prelim and thereby reduce the number of charges he was facing. There was a reasonable probability that Milton would not have gambled and instead accepted the plea bargain for both charges if his lawyer had given him this information. Had he taken the offer Milton would have served close to 18 years rather than the life sentence imposed. The panel was not persuaded. It said that Milton didn’t explain why he would reasonably believe the prosecutor would reduce the drug trafficking charge to one not carrying a mandatory life without parole sentence because Milton somehow got a dismissal in the drive-by shooting case. The panel concluded, “to any reasonable jurist, Milton’s poor ‘gamble’ was the cause of his current predicament, not the lack of any additional ‘warning’ from his attorney.” Besides, Milton knew that if he went through with the preliminary hearing, the offers resolving both cases with a concurrent sentence would expire. That being said, one can see that some ‘reasonable jurists’ might understand that Milton thought he would only have to negotiate an agreement on one charge if he got the other dismissed. If he wasn’t told the prosecutor intended to pursue mandatory life, how would he know that wasn’t a possibility? An awful result for a petition that seemed to hold some promise.

Court Finds No Error, But Clarifies Interpretation of Standard Supervised Release Conditions

United States v. Muñoz, 2016 WL 502863 (2/9/2016) (NM): The defense argued that each of the twelve standard conditions of supervised release imposed on Muñoz were substantively unreasonable. He pointed out that many of these conditions were vague and did not adequately inform Muñoz as to what he could and could not do. The panel rejected the substantive unreasonableness argument but helpfully defined certain words and phrases in the conditions that may protect our clients against overzealous probation officers. For example, the condition that a person not associate with someone convicted of a felony does not extend to casual or chance meetings. Also a person may invoke his right to remain silent although a standard condition requires him to answer truthfully the questions put to him by the probation officer. The panel interpreted the condition that the person support dependents and meet other family obligations to mean that family members who rely on him for “financial support” must be “provide[d] with a home and the necessities of life.” Regarding notifying the probation officer at least 10 days before any change in residence or employment, the panel said the person must give notice “of an event only if he foresees it.” Finally, the condition that a person not frequent places where controlled substances are sold illegally or distributed forbids a person from going to such places “only if he knows that drugs are used or sold there.” The panel was not so helpful with the other standard conditions. However, the sentencing commission has proposed amendments to the standard conditions which more accurately define the proscribed conduct. They are available here.

Sufficient Evidence Supported Tax Evasion Convictions; District Court Properly Refused to Include Back Taxes Paid When Determining Loss

United States v. Vernon, 2016 WL 502835 (2/9/2016) (KS): Vernon, a doctor, was convicted on five counts of attempted tax evasion. She challenged the sufficiency of the evidence against her. Primarily she argued that the legal theories upon which the government relied to prosecutor her - sham corporation, assignment of income, alter ego, substance over form - did not prove the elements of willfulness and the existence of a tax deficiency. The panel disagreed. It ruled that these theories were consistent with the general underlying principles of federal income taxation, especially that gains should be taxed to those that earn them. Her willfulness was evident in the numerous ways she schemed to avoid paying income tax: setting up sham corporations in her partner’s name, reassigning income from that corporation to herself, acting as the alter ego of a corporation she did not own and doing the work mandated by the corporation’s employment contracts and redirecting the money paid to the corporation to herself. Vernon also argued the court’s instructions to the jury on these legal theories was incorrect and described acts that were not criminal. Again, for the same reasons, the panel disagreed. Lastly, Vernon said the court erred calculating the tax loss. She said that the back taxes she paid before she was charged should not have been used to calculate loss. The panel saw it differently because the sentencing guidelines define tax loss under 26 U.S.C. § 7201 as the intended loss and not the actual loss. The fact that she was ultimately forced to pay those back taxes, interest and penalties is irrelevant since she attempted to evade paying taxes even before the misbehavior described in the indictment.

Child porn convictions and sentence affirmed.

U.S. v. Smith, 2016 WL 767054 (2/29/16) (Okla.) - Mr. Smith's convictions of eight counts of distribution were not clearly multiplicitous in violation of double jeopardy. The Tenth rejects under the plain error standard his argument that the proper unit of prosecution must be based on instances of making porn available, which he argued occurred once, not every instance of downloading. Because no Tenth Cir. precedent has addressed this multiplicity argument and the only precedential decision from another circuit rejected it, the plain error standard was unmet. The district court properly refused to consider at sentencing Mr. Smith's pro se objection to consideration of his pending state court charge because he was represented by counsel who declined to supplement his argument. Anyhow, the state charge did not affect the bottom-of-the-guidelines sentence imposed.

Government's Failure to Preserve Text Messages Did Not Violate Defendant's Due Process Rights

U.S. v. Harry, 2016 WL 767028 (2/29/16) (NM) - The Court affirms a sexual assault conviction that stemmed from post-party conduct while the victim was sleeping. The government did not violate Mr. Harry's due process rights by failing to preserve text messages sent to him by a friend present at the party. The text messages were requested from the phone company 15 days after the text message exchange, but the phone company responded that it did not store messages after two weeks. Mr. Harry did not satisfy his burden to prove the lost text messages would have been expected to play a significant role in his defense and thus would have had apparent exculpatory value. He also did not show bad faith. There was no evidence that anyone intentionally deleted the lost messages.

The Tenth also rejects Mr. Harry's claim that the district court erred by admitting into evidence text messages he sent, while excluding under Rule 412 one text in which he stated "[s]he was all over me the whole night." The Tenth finds Mr. Harry failed to establish the relevance of the excluded text message and the district court properly found that his purpose was to introduce the text to demean the victim. With respect to other excluded evidence that the victim had been flirting with him, Mr. Harry failed to show its relevance to his defense and its exclusion was proper under Rule 412. Mr. Harry did not rebut the presumption that his within-guidelines 151-month sentence was reasonable, the Tenth says, and so it affirms the sentence as substantively reasonable.

Unpublished Decisions

U.S. v. Franco, 2015 WL 8538121 (12/11/15) (N.M.) (unpub'd) - The 10th contradicts the suggestion in the Garcia-Escalera case reported in the a previous update regarding the changes in Fed. R. Crim. P. 12. . This panel says in a footnote that the elimination of the word "waiver" from Rule 12(e) made no substantive change. This is what the advisory notes say, says the 10th. So when counsel doesn't raise a specific suppression claim below then the issue is waived, not just forfeited, in the 10th. In this case, Mr. Franco contended that the police lacked reasonable suspicion to stop him when he stopped in the middle of the road with the car's lights off and then backed up. On appeal, Mr. Franco argued the officer unreasonably interpreted N.M. Stat. 66-7-349. This wasn't part of Mr. Franco's argument below. Mr. Franco argued below he was legally parked. The 10th refuses to consider the argument on waiver grounds. Mr. Franco had 10th Circuit law on his side to challenge the officer's interpretation before the district court, but he didn't take advantage of that, the 10th claims. There was no good cause to fail to make the argument.

U.S. v. Mata-Rodriguez, 2015 WL 7973799 (12/7/15) (Kan.) (unpub'd) - The 10th holds that, not only was the district court not required to order a new PSR and hold an evidentiary hearing with respect to Mr. Mata-Rodriguez's § 3582(c)(2) motion, it would have been legally improper to do so. Mr. Mata-Rodriguez wanted to present evidence of his rehabilitation. The district court denied that opportunity and imposed the highest end of Mr. Mata-Rodriguez's amended guideline range, just as the court had imposed the highest end at the first sentencing when a higher range applied. The 10th goes on and on about how a § 3582(c)(2) sentencing is not a full resentencing.

U.S. v. Campos-Lucas, 2015 WL 8288101 (12/9/15) (Col.) (unpub'd) - The 10th affirms an upward variance in a reentry supervised-release revocation case. The Colorado judge imposed a below-guideline range sentence of 4 months for an illegal reentry. During the sentencing Mr. Campos-Lucas promised not to return. Four months after he was removed, he was found in Arizona. He received a 6-month sentence for illegal reentry there. . The sentence range for his supervised release violation was 5 to 11 months. At the revocation hearing, the judge exclaimed: "This is a first in my experience to have a defendant promise not to return under oath only to reenter within such a short time after that solemn pledge. The conduct here represents the ultimate expression of abject disrespect and contempt for our judicial system and this court [that is, me]." So the court imposed an 18-month sentence. That sentence was not substantively unreasonable, the 10th rules, since breach of trust is the gravamen of revocation sentencing and Mr. Campos-Lucas got an apparently unwarranted break when he previously received a downward variance.

U.S. v. Taylor, 2015 WL 7975854 (12/7/15) (Okl.) (unpub'd) - The 10th relies on U.S. v. Madrid, 805 F.3d 1204 (10th Cir. 2014), to vacate a sentence relying on the crime-of-violence residual clause for an enhancement under § 2K2.1(a)(2) firearms. Mr. Taylor showed sufficient prejudice to satisfy the 3rd & 4th prongs of the plain error standard because his guideline range was reduced from 100-120 months to 70-87. months.

Griffin v. Scnurr, 2015 WL 8479630 (12/10/15), amended in an irrelevant way at 2016 WL 158718 (1/14/16) (Kan.) (unpub'd) - The 10th is unimpressed by Mr. Griffin's contention that his procedural default problem is overcome by his innocence. It doesn't matter if he may be innocent under the state's new interpretation of the intent requirement for second-degree murder. Procedural default cannot be overcome through innocence based on judicial opinions issued after a defendant's trial.

Moore v. Diggins, 2015 WL 8479678 (12/10/15) (Col.) (unpub'd) - The 10th reverses a summary judgment grant to a Denver jail nurse and doctor. Mr. Moore alleged as follows. At intake Mr. Moore told the nurse he needed a cane or walker because of stability issues. Without adequate support, he told her, he was in tremendous pain standing, sitting and walking She responded: " don't have time to verify your request because I have 40 other inmates to deal with. You'll have to deal with it upstairs," where he would be staying. She refused Mr. Moore's request to see her supervisor. Once upstairs a deputy told Mr. Moore the medical unit was closed for the day. The next day, after Mr. Moore filed a grievance, he saw a doctor who confirmed that Mr. Moore had been prescribed a cane or walker, but said he didn't currently have a cane or walker. In response to Mr. Moore's request to call other medical departments to see if they had what he needed, the doctor responded: "not right now." Despite Mr. Moore's complaints of tremendous pain, the doctor sent Mr. Moore away without a cane or walker. During Mr. Moore's 2d day in jail, his left hip gave out. He collapsed to the floor, causing additional pain. Since then he's been in tremendous pain, even though the jail gave him a walker, which mysteriously appeared 3 hours after the fall. The 10th holds Mr. Moore alleged enough to establish sufficient harm and deliberate indifference to his medical needs.

Marijuana Dispensary Must Disclose Documents in Tax Court

Feinberg v. C.I.R., 2015 WL 9244893 (12/18/15) (12/18/15) (Col.) (Published) - The 10th refuses to grant on Fifth Amendment grounds a writ of mandamus to prevent the government from obtaining in discovery documents showing the nature of the business of a Colorado marijuana dispensary. Total Health Concepts ["THC"] challenged in tax court the IRS's refusal to recognize business expense deductions because the enterprise is illegal under federal law. THC contended revealing the nature-of-business documents would violate its owners' privilege not to incriminate themselves, The government responded that the AG's memo stating the policy that the AG would not prosecute Colorado marijuana dispensaries as long as they followed state law assures that any documents discovered would not be used to prosecute THC. The 10th is skeptical of that argument, given that the current Attorney General or a new AG could change that policy. But 10th precedent says now is not the time to address the issue. A later appeal could redress the problem, the precedent says, either on an appeal of a contempt citation or on appeal after disclosure and a trial. The 10th and the government seem to agree that at a criminal trial the THC owners could move to suppress the discovered materials on the grounds that they were involuntarily produced.

Unpublished Decisions

Perez v. Dowling, 2015 WL 8750538 (12/15/15) (Okl.) (unpub'd) - A holding regarding Rodriguez v. U.S., 135 S. Ct. 1609 (2015) [officers can't prolong a traffic stop longer than necessary for the stop's purpose] that is possibly helpful to us, although a bad thing for Mr. Perez's § 2254 chances. Mr. Perez argued his petition was not untimely because he filed the petition within one year of the day Rodriguez was decided. The 10th holds Rodriguez is not a new rule and so didn't extend Mr. Perez's deadline for filing the petition. This holding can be used to counter a government argument that officers relied in good faith on pre-Rodriguez law that justified their conduct. See Davis v. U.S., 564 U.S. 229 (2011) (no suppression for search in violation of Arizona v. Gant, 556 U.S. 332 (2009), where police relied on binding pre-Gant appellate precedent allowing the search). Also no equitable tolling where the pro se petitioner explained: "I can't speak English. I'm Mexican-Latino. I'm not American. I can't get help here a lot." He also alleged his lawyer took advantage of him because he was Latino. The 10th "can sympathize with" Mr. Perez's difficulty, but being a non-English speaker is not an extraordinary circumstance external to Mr. Perez that would justify equitable tolling, the 10th concludes..

U.S. v. Villegas, 2015 WL 8593429 (12/14/15) (N.M.) (unpub'd) - The 10th affirms a traffic-stop suppression denial and the government's refusal to seek a 3E1.1(b) reduction. The 10th finds the officer had reasonable suspicion to believe Ms. Villegas violated New Mexico's lane-maintaining statute, N.M. Stat. 66-7-317. The officer claimed he saw her go onto the shoulder once while she was watching the officer in her rear-view mirror. The 10th assumes the statute required the presence of a safety concern. It rules the district court did not clearly err in finding such a concern based on the officer's testimony that he just happened to see tire debris on the shoulder, although he couldn't specify its proximity to Ms. Villegas's car. The 10th also finds the traffic-stop encounter became consensual when the officer returned Ms. Villegas's paperwork, said she was "good to go," she reached for the door of the patrol car she was sitting in , the officer asked if he could ask her more questions and she agreed. Her reaching for the door showed she knew she could leave. Being enclosed in a patrol car didn't render involuntary her consent to further questioning and subsequent consent to search.
After the denial of the suppression motion, defense counsel sought a conditional plea agreement, but the prosecutors refused. Counsel sought a bench trial. The prosecutors insisted on a jury trial. Both parties filed pretrial motions in limine and other typical pleadings. At trial counsel presented a "minimal defense" in the 10th's words. The district court gave Ms Villegas the 2-level reduction for acceptance of responsibility, but the government refused to move for the additional level under § 3E1.1(b). The 10th says the district court did not clearly err in denying the one level because, unlike other defendants in cases Ms. Villegas cited, she did not plead guilty after her motion to suppress was denied. Irritatingly, the 10th doesn't address the fact that Ms. Villegas offered to enter a conditional plea. According to the 10th, she "forced the government to present its case at trial," and do extra work, such as filing motions and responding to defense motions.

U.S. v. Jones, 2015 WL 8757254 (12/15/15) (N.M.) (unpub'd) - The 10th suggests that, a defendant can never obtain § 3582(c)(2) relief in a case involving an 11(c)(1)C) plea agreement, absent a specific reference to the defendant's criminal history category.

U.S. v. Stanfiel, 2015 WL 9014182 (12/16/15) (Okl.) (unpub'd) - The 10th affirms the denial of 3582(c)(2) relief because of less than an ounce of meth. In 1997 Mr. Stanfiel's offense level was 36. The district court added 135.9 grams of actual meth to 89 % of 55 ounces of meth, i.e., 48.95 ounces of actual meth. With reference to the latter calculation, the district court found Mr. Stanfiel was involved with "approximately 48 ounces or 48 and a fraction" of actual meth. At that time the .95 ounce made no difference for guideline purposes. Under amendment 782, Mr. Stanfiel stays in offense level 36 if the 48.95 figure applies because added with the 136.9 grams the total is just above 1.5 kilograms. Mr. Stanfiel argued the court should use the "approximately 48 ounces" finding. Using that finding leads to a total of 1.497 kilograms, just barely in offense level 34. The 10th says the "district court's failure to specify the precise fraction does not preclude us from using the numbers provided in the findings to determine the quantity equals 48.95." The 10th also rejects Mr. Stanfiel's ex post facto argument relating to the drug equivalency tables. The 10th says cases arising under § 3582(c)(2) have no bearing on the ex post facto clause because they cannot increase the defendant's punishment."

U.S. v. Bayatyan, 2015 WL 8600018 (12/14/15) (Okl.) (unpub'd) - The 10th proffers another reason to reject an ex post facto clause argument in a § 3582(c)(2) case. Mr. Bayatyan received a downward variance at his first sentencing hearing. This meant that under the current § 1B1.10 he could not get any reduction in sentence because his amended guideline range was above the variant sentence he got. Under the § 1B1.10 in effect at the time of his sentencing, a district court could subtract from the amended guideline range the amount of the original variance. Mr. Bayatyan argued the ex post facto clause required use of the version of § 1B1.10 at the time of his original sentencing. However, the 10th says there's no ex post facto clause problem because the old § 1B1.10 did not include the 2014 amendment 782 So, the old § 1B1.10 didn't require retroactive application of the new amendment. So Mr. Bayatyan is not any worse off than he was in 1997.

U.S. v. Mullins, 2015 WL 9244908 (12/18/15) (Okl.) (unpub'd) - The 10th holds it does not violate due process to use remote-in-time (25-30 years ago) prior sexual abuse to impose a pattern-of-abuse enhancement under § 2G2.2(b)(5) in a child porn case. Troublingly the 10th justifies its conclusion in part on the ground that there is an increased risk of recidivism associated with sexual abuse and exploitation of children. As we know, the opposite is true. Nonetheless, the 10th's "reasoning" suggests that maybe the use of very old non-sex-abuse crimes for enhancement may violate due process. The 10th also finds evidence of the prior sex abuse reliable enough. Officers could assess the credibility of Mr. Mullins' now-adult stepson based on an in-person interview. Mr. Mullins' wife reported the stepson had confronted Mr,. Mullins about the abuse. And, the 10th says "perhaps most significantly," at the sentencing hearing, Mr. Mullins did not deny the abuse nor call the stepson to testify or confront him even though the stepson attended the hearing.

U.S. v. Welch, 2015 WL 9009948 (12/16/15) (N.M.) (unpub'd) - The 10th holds the government was not bound by its post-plea-agreement oral promises regarding Ms. Welch's sentence. Ms. Welch helped 3 men escape from an Arizona prison. During the subsequent fleeing and hiding out, an Oklahoma couple was killed in Quay County. To avoid the death penalty, she entered a plea agreement in which she agreed to cooperate with the prosecution. The government promised to move for a § 3E1.1(b) reduction, dismiss certain counts, refrain from further charges & consider filing a § 5K1.1 motion. Ms. Welch fulfilled her part of the bargain, testifying at John McClusky's death penalty trial [he was convicted, but the jury did not unanimously vote for the death penalty]. Ms. Welch alleged that 2 weeks before sentencing, the government promised not to oppose a 20-year sentence and to defer to the district court's sentencing discretion. It doesn't seem like the government denied that something like that happened. At sentencing, the government disagreed with Ms. Welch's request for a 20-year sentence and argued a 40-year sentence satisfied the § 3553(a) requirements because she made a decision to kill and lacked a moral compass. The district court imposed a 40 year prison term.

The 10th holds the government was only obligated to fulfill its written promises, which it did. The 10th is impressed by the fact that the government's § 5K1.1 motion led to a reduction from a guideline sentence of about 125 years all the way down to 40 years for a woman in her mid-40's. The 10th finds the plea agreement did not allow for oral modifications. The 10th acknowledges that an oral modification might be enforceable anyway. But it didn't happen here, the 10th says, because Ms. Welch did not give any new consideration for the promises. She had already done what she could do for the government. There was no detrimental reliance. Finally, for the same reasons noted above, the 10th rules the district court did not clearly err when it found the government did not act in bad faith when it made those oral promises.

Patrick v. Patton, 2015 WL 9239238 (12/17/15) (Okl.) (unpub'd) - The 10th says cruel and unusual punishment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence for multiple crimes. That principle justifies rejecting Mr. Patrick's contention that it was a violation of the Eighth Amendment to run his sentences cumulatively for a total 55-year sentence for a single incident involving multiple crimes.

Garnishment Order Reversed

U.S. v. Martinez, 2015 WL 9009626 (12/16/15) (n.M.) (Published) - the 10th reverses the district court's grant of a writ of garnishment of Mr. Martinez's retirement funds. The government became unhappy with the pace of Mr. Martinez's payments towards the $2.7 million restitution amount. So it sought to garnish his two retirement funds. But the 10th holds the government cannot garnish when a defendant doesn't owe any money. It can't enforce beyond the payment terms of the restitution order. The district court had ordered Mr. Martinez to make monthly payments of 25% of his net income. The reason he didn't pay much was because he had no monthly income. The government never claimed he was in arrears. The 10th stresses it's up to the district court, not the government, to decide how a defendant is to pay restitution. And the district court did not order the restitution to be paid immediately. Orally the court ordered Mr. Martinez to pay a fixed amount of 25% of his disposable income. This overrode the written order of "no less than"25%. The 10th also notes the schedule of payments section of the written judgment where the court checked the box indicating the restitution was not immediately due. The 10th goes so far as to indicate that, if a court provides for instalment payments, restitution is not due immediately. The 10th rejects the government's claim that it can garnish even if no money's owed. That would contravene the specific and detailed scheme Congress laid out for district courts to determine how restitution is to be paid, whether in-kind or installments or both, based on the defendants' financial situation. The 10th distinguishes and/or disagrees with a 5th Circuit case, going to the extent of looking at the district court records in that case to see what the judgment in that case said. The 10th concludes either the 5th Circuit decided differently because it dealt with a different judgment or because it didn't consider the comprehensiveness of the statutory scheme.

unpublished decisions

U.S. v. Garcia-Escalera, 2015 WL 7770205 (12/3/15) (Okl.) (unpub'd) - Mr. Garcia-Escalera relied on Franks to challenge a search warrant affidavit. The district court rejected that claim and also added that the affidavit was sufficient on its face to establish probable cause. On appeal Mr. Garcia-Escalera argued there was insufficient corroboration of the affiant's claims to establish probable cause. The 10th holds that under the old version of Fed, R. Crim. P. 12(e), Mr. Garcia-Escalera waived this argument because he didn't raise it below and the district court's sufficiency conclusion likely did not address Mr. Garcia-Escalera's corroboration issue. In a footnote, the 10th suggests that maybe revised rule 12(b)(3) now does not call for the harsh conclusion that a forgotten issue is waived. Maybe it would just be forfeited, [meaning plain error review might be available]. The old rule referred to a party waiving, absent good cause. But now the rule only refers to a suppression issue raised beyond the district court's motions deadline as being "untimely."

Galbreath v. the City of Oklahoma City, 2015 WL 7873587 (12/4/15) (Okl.) (unpub;d) - The 10th holds a disorderly conduct ordinance that prohibited "causing public alarm without justification," was not unconstitutionally vague as applied to Mr. Galbreath. As previously reported, the 10th reversed a summary judgment grant. The case went to trial and Mr. Galbreath lost. As you recall, an officer answered a 911 call to a park where he found Mr. Galbreath singing or humming and twirling and spinning a stick [Mr. Galbreath said it was a cane]. According to the officer, Mr. Galbreath was unsteady on his feet and speaking incoherently. Mr. Galbreath explained that he was doing his exercises as part of physical therapy for a bone disease affecting his hips damaged by his former career as a ballet dancer, and giving candy to children who answered his questions correctly. Mr. Galbreath became agitated at the officer's interrogation. The officer arrested Mr. Galbreath, but the city later dropped the charges. The 10th concludes a reasonable jury could conclude Mr. Galbreath did not provide justification for his actions. The 10th finds the giving candy to children "potentially troubling" and finds that did not explain his stick twirling, singing and behaving erratically.

Han-Noggle v. City of Albuquerque, 2015 WL 7873438 (12/4/15) (N.M.) (unpub'd) - The 10th affirms the dismissal on qualified immunity grounds of the lawsuit by the family of deceased attorney Mary Han regarding the APD investigation of Ms. Han's death [immediate assumption it was a suicide; no interviews of neighbors, family and friends; not collecting physical evidence; not preserving fingerprints; no attempt to identify the last person who saw Ms. Han alive; 26 to 50 people trampling the scene; not inventorying Ms. Han's diamond rings, cell phone and laptop, all of which later disappeared]. The plaintiffs alleged APD's conduct deprived them of access to the courts to pursue a wrongful death action. The 10th finds no basis for relief because the plaintiffs did not adequately describe what kind of wrongful death action they could have filed. The 10th says the family did not provide a theory as to how Ms. Han died or who allegedly caused her death. The 10th also affirms the attorney fees' award against the plaintiffs, which the district court justified by concluding one of the 5 claims was frivolous.

Robinette v. Fender, 2015 WL 7753352 (12/2/15) (Col.) (unpub'd) - The 10th refuses to consider an issue where the opening brief contained "only conclusory allegations, a few statutory references, and a handful of case citations with no analysis."

Wednesday, January 20, 2016

Probable Cause Supported Arrest of 11-Year-Old Girl

J.H. v. Bernalillo County, 806 F.3d 1255 (11/27/15) (N.M.) (Published) - In this § 1983 civil rights case, the 10th finds probable cause to arrest an 11-year-old. The officer saw J.H. kick a teacher. This was a violation of N.M. Stat. Ann. § 30-3-9(E). It didn't matter if the crime were a misdemeanor or that J.H. was only 11 years old. The officer could keep J.H. in handcuffs. The girl's age didn't eliminate the officer's concern for his safety. Under state law, the officer had the option of taking the girl to a detention center, instead of releasing her to her mother. Probable cause justified what the officer did.

District Court Incorrectly Calculated Loss, But Harmless Error Because Court Would Have Imposed 30-month Sentence Regardless

U.S. v. Snowden, 806 F.3d 1030 (11/27/15) (Col.) (Published) - An appropriator of computer information, Mr. Snowden [no, not that Snowden] apparently wins the guideline battle, but definitely loses the sentencing war. Mr. Snowden quit his job with a physician-staffing service and took the company's proprietary data with him to help him compete with the company. Things didn't quite work out for Mr. Snowden. He didn't steal any customers. The only loss to the company was $25,000 in attorney fees. Nonetheless, the district court counted the actual loss under the guidelines as more than 1.5 million dollars because that's what it cost to develop the database Mr. Snowden stole. The court relied on an application note that says: "in calculating loss, a court may take into account, in the case of proprietary information, the cost of developing that information." The 10th strongly suggests the district court was wrong.

The 10th says, while the note allows for taking into account the development costs, it does not authorize substituting those costs for actual loss, which were only the attorney fees in this case. With the enhancement, the range was 41 to 51 months. Without the enhancement, the range was 8 to 14 months. The district court varied down to 30 months. But the district court added that, if it incorrectly calculated the guidelines, the sentence would still be 30 months based on the § 3553(a) factors. The 10th finds any error harmless, even though the 30-month sentence would be an upward variance from the apparently correct range. The 10th notes the district court spent a great deal of time [6 hour hearing, briefs, proposed findings] and reflection [the court said it devoted "many hours" to reviewing the submissions] on the sentence. Plus, the court detailed what factors justified the 30 months. In sum, the 10th finds, "the court made it utterly clear the specifics of Mr. Snowden's offense overrode the intricacies of the guideline calculations." It might have been better, the 10th observes, if the district court had specifically said it would have varied upward to impose the same sentence, even if the correct range was 8 to 14 months. But that conclusion was implicit in what the court did say. It was not a "boilerplate remark to avoid reversal."

Unpublished Decisions

U.S. v. Cunningham, 2015 WL 7444847 (11/24/15) (Col.) (unpub'd) - Heien v. North Carolina, 135 S. Ct. 530 (2014), rears its ugly head here. The officer reasonably interpreted the traffic code to prohibit what Mr. Cunningham's driver, Ms. Ulloa [Mr. Cunningham was the passenger] did, justifying the stop. Officers were laying in wait for a reason to stop the car for reasons the 10th leaves undiscussed. Ms. Ulloa left a motel parking lot and turned left onto a public road without signaling for the turn. Colorado law says: "No person shall turn a vehicle to enter a private road or otherwise turn a vehicle from a direct course or move right or left upon a roadway . . . only after giving an appropriate signal." Note the law doesn't explicitly refer to turning from a private road to a public one. The 10th expresses relief that, thanks to Heien, it doesn't have to figure out whether Ms. Ulloa violated the law. If it's hard to figure out what the law means, as in this case, then the officer acted reasonably in finding a violation. An ambiguous law with no authoritative court construction means a stop is okay. Here the 10th points to a number of factors showing ambiguity. First, pre-Heien, the district court gave the law the same interpretation as the officer. Second, a Colorado Court of Appeals' decision where the driver turned from a public roadway to a private lot indicated what matters is whether a person's conduct took place on a public street. Here Ms.Ulloa's turning took place on a public road. Third, the state district courts were in conflict over the interpretation of the law. Fourth, the 10th thinks an officer could reasonably think "otherwise turning a vehicle from a direct course" encompassed Ms. Ulloa's conduct of turning from the private lot. The officer could believe the law didn't require doing so on a public roadway. And anyway, Ms. Ulloa did turn her car "from a direct course" onto the public roadway because she crossed the westbound lane of the public road to get to the eastbound lane.

U.S. v. Yanez-Rodriguez, 2015 WL 7597425 (11/27/15) (Col.) (unpub'd) - The 10th indicates admission of 2 prior removals in addition to the most recent removal might have violated Evidence Rule 403 in a reentry trial. The 10th says the 404(b) evidence was probative that Mr. Yanez-Rodriguez was an alien without permission to be in the U.S. and that his recent reentry was intentional, both elements of the offense. But it finds the potential for unfair prejudice was "great." The evidence showed his propensity to commit the charged offense, enhanced by the government's closing argument that he was a "habitual trespasser." Plus Mr. Yanez-Rodriguez did not contest his alienage or his intent [apparently he defended on the ground that he may have had permission to enter]. So, the 10th says, there was little justification for admitting the evidence. But the 10th holds that any error was harmless, given the overwhelming evidence of Mr. Yanez-Rodriguez's guilt. The 10th then makes an interesting suggestion: the court should hold off admitting the evidence under Evidence Rule 611 until after both parties have presented their cases in chief to see what issues were really contested and how overwhelming the government's case is. The 10th also takes a dig at the government, commenting:"But for the government's aggressiveness, the Rule 404(b) matter may never have arisen." And most importantly, this is the first 10th case I recall that cites to a country singer, Vern Goslin, who apparently at one time sang: "This ain't [Yanez-Rodriguez's] first rodeo."

U.S. v. Etenyi. 2015 WL 7422604 (11/23/15) (Kan.) (unpub'd) - The 10th remands for findings of fact and statement of reasons for a detention order. The written order said the detention was for the reasons stated on the record at the detention hearing, but at the hearing the district court did not provide sufficient explanation and factual findings to support the detention. So no meaningful appellate review was possible.

Duncan v. Hickenlooper, 2015 WL 7567465 (11/25/15) (Col.) (unpub'd) - The 10th excuses Mr. Duncan for not filing timely objections to the magistrate judge's report and recommendations. He didn't receive any legal mail while hospitalized. He met the objective prong for a § 1983 suit for a cruel & unusual punishment lawsuit concerning uranium and trihalomethanes in the prison's drinking water from Sterling, Colorado. He suffered liver, kidney, thyroid, immune-system , nervous system, spine and lung damage accompanied by "extreme, daily abdominal pain." He met the subjective prong with respect to the wardens because he submitted documents indicating Sterling notified the wardens in 2008 of elevated uranium levels in the city water and in 2012 about elevated trihalomethane levels and the wardens did nothing to abate the risk until 2013. This shows deliberate indifference to the prisoners' health.

Rowley v. Morant, 2015 WL 7567485 (11/25/15) (N.M.) (unpub'd) - The 10th affirms denial of § 1983 relief to one of the door-to-door salesmen who was unjustly accused of killing a couple in Albuquerque and kept in jail for 16 months. The 10th holds Mr. Rowley's involuntary-statement claim is precluded by the state district court's ruling that his statements were voluntary. The 10th finds no abuse of discretion in the district court's denial of a motion to amend to include a claim that interrogating officers disregarded Mr. Rowley's request for an attorney. The district court rejected Mr Rowley's contention he filed the motion so late because he didn't learn until later that the tape of his interrogation [which didn't show an attorney request], had been tampered with. The 10th says the court reasonably found Mr. Rowley did not come up with a real expert to prove the tampering. Importantly for appellate types, the 10th refuses to consider Mr. Rowley's attempt in his reply brief to distinguish a case upon which the district court relied. Mr. Rowley had to challenge the district court's reasoning and so distinguish the case in the opening brief. A suggestion in a footnote in the opening brief in a parenthetical to an out-of-circuit case didn't cut it.

U.S. v. Owens, 2015 WL 7597450 (11/27/15) (Okl.) (unpub'd) - Mr. Owens ended up with a 27-year sentence for child porn production after entering a plea agreement which apparently did him no good, but did contain an appeal waiver. Later Mr. Owens filed a § 2255 asserting his counsel was ineffective for not advising him he could plead guilty without a plea agreement that waived his appeal right. The 10th finds no prejudice because ultimately Mr. Owens withdrew the notice of appeal he had initially filed after his attorney advised him his appeal would not succeed. But one of the reasons his attorney gave for why his appeal wouldn't succeed was that he had waived his right to appeal!? More substantively, the 10th assures us that a district court does not err by rejecting habeas claims in footnotes. The 10th proceeds to deny Mr. Owens' evidentiary-hearing claim in a footnote.

Tiedemann v. Church of Jesus Christ of Latter Day Saints, 2015 WL 7367261 (11/25/15) (Ut.) (unpub'd) - The 10th rejects Mr. Tiedemann's claim that the church and its leader violated his constitutional rights by endangering his soul.

Police Theft While Executing Search Warrant Did Not Support Suppression Order

United States v. Webster, 2016 WL 53817 (1/5/2016)(published)(KS): The panel rules that the district court should not have suppressed guns and drugs seized from Webster’s house just because police officers stole Webster’s personal belongings while executing the state warrant. While the panel “sympathize[d] with the district court’s outrage over the criminal actions undertaken by police officers sworn to protect the public from crime” it was not “persuaded that the exclusionary rule was intended to govern in the circumstances of this case.” The panel tried to distinguish other cases where the circuit had affirmed a blanket suppression order for flagrant police misconduct. It explained that in Medlin II, 842 F.2d 1194, the police were working under the auspices of the ATF when they took items that were outside of the warrant, whereas here, there was no proof the officers who took the guns and drugs knew that the officers who got in the house first had stolen Webster’s belongings. In Foster, 100 F.3d 846, the police took countless articles not identified in the warrant, but here they only took four. And the four they purloined - iphone, play station, $100 cash and a camcorder - were not used as evidence against Webster. Still, the panel relied heavily on Herring, 555 U.S. 135, to conclude that there would be “little deterrent effect on future police conduct” if it affirmed the blanket suppression of all the evidence the police seized. After all, the “societal cost [of] letting guilty and dangerous defendants go free”, like Webster, outweigh the “marginal deterrence” of a blanket suppression order.

Violation of "No Contact" Portion of Protective Order Supported Removal

Cespedes v. Lynch, 805 F.3d 1274 (11/19/15) (Published) - The 10th holds the Bureau of Immigration Appeals (BIA) reasonably interpreted 8 U.S.C. § 1227(a)(2)(E)(ii), which says an alien is removable if s/he "violates the portion of a domestic violence protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury." Mr. Cespedes violated the no-contact part of a pretrial protective order. The relevant Utah statute says it authorizes such orders because of the "likelihood of repeated violence directed at victims of domestic violence." The 10th says that, while it might or might not have a different opinion, the BIA could interpret § 1227(a)(2)(E) to mean that a no-contact part of a protective order involves protecting against violence. This is so because contact in the circumstances of a domestic violence situation could lead to violence. The 10th describes this as the "nips-in-the-bud" interpretation. No actual violence was necessarily required by the statute. It was also okay, the 10th says, for the BIA not to require the state court to have found the no-contact portion of the order was meant to protect against violence. That is not a finding a state court would likely make, the 10th says.

Trial Court Properly Denied New Trial Motion; DNA Evidence Did Not Undermine Government's Murder Case

U.S. v. Jordan, 806 F.3d 1244 (11/20/15) (Col.) (Published) - The 10th affirms the denial of Mr. Jordan's motion for a new trial on a murder charge based on newly discovered evidence. Mr. Jordan presented testimony of an expert that it was possible the DNA of a Mr. Riker was on the knife used to stab and kill a fellow inmate. Mr. Jordan contended Mr. Riker was really the one who stabbed and killed the victim. Mr. Jordan also presented letters of Mr. Riker admitting Mr. Riker was the murderer. The 10th is unimpressed, finding the new evidence did not meet the new-trial requirement that the new evidence would probably lead to an acquittal at a new trial. First, the government never contested that Mr. Riker also touched the knife at some point. So the DNA didn't undermine the government case. Second, Mr. Riker also wrote letters intermittently retracting his admissions and testified at the new trial hearing that it was Mr. Jordan, not he, who stabbed the victim. He wrote the confessions, he said, because he preferred to spend the rest of his life in federal prison as a convicted murderer than in state prison as a convicted child molester. The 10th refuses to address whether it was proper for the government to present new evidence, such as the victims' dying declarations, at the new trial hearing. That evidence didn't matter because Mr. Jordan's new evidence could not carry the day regardless.

Unpublished Decisions

U.S. v. Brown, 2015 WL 7352015 (11/20/15) (Kan.) (unpub'd) - The 10th affirms drug convictions, finding no prejudicial evidence errors. The 10th holds it was plain error to admit a state drug conviction resulting from a nolo contendere plea. Evidence Rules 410(a)(2) and 803(11)(a) prohibit such evidence. But the other evidence was so overwhelming that no harm done. The 10th finds Mr. Brown's counsel invited any error when he asked a DEA agent if a government snitch witness had made inconsistent statements and the agent unsurprisingly responded: "I think [the witness] was exceptionally credible." The 10th also finds no abuse of discretion in the district court excluding from evidence a photo of an alleged co-conspirator drinking while surrounded by women. The photo was supposed to show the co-conspirator was "living large," whereas Mr. Brown was not benefiting from the conspiracy's rewards, which apparently included getting to hang out with women.

Burnett v. Miller, 2015 WL 7352007 (11/20/15) (Okl.) (unpub'd) - The 10th sends back for district court consideration whether Mr. Burnett could establish a cruel & unusual punishment violation for being confined in a cell for over 24 hours with no heat when it was below freezing outside and with instructions that he get no food or drink. Otherwise, no relief for a 30-day delay in providing proper treatment for severe chest pains that eventually required three stents to relieve. At worst this was misdiagnosing, not deliberate indifference to Mr. Burnett's medical needs, the 10th explains. On the good news side, the 10th removes the strike the district court imposed for filing a frivolous lawsuit. The resolution of an arguable question of law against a prisoner, especially when the prisoner did experience severe chest pain for a month does not mean the suit was frivolous, the 10th says.

State Petitioner Serving Consecutive Life Sentences Is "In Custody" for 2254 Purposes

Hagos v. Raemisch, 2015 WL 9466931 (12/29/2015) (CO): Hagos is serving consecutive state life sentences for murder and kidnapping. He is challenging the murder conviction a state habeas proceeding. In federal court, he filed a 28 USC § 2254 habeas petition contesting only the kidnapping conviction. The federal district court dismissed the petition because it found he was not “in custody” and had not presented a “case or controversy” for it to decide. It found he was not “in custody” because even if it granted his petition that would not have shortened his time in prison. For that same reason he had not presented a case or controversy. The appellate panel disagreed.

The panel found that Hagos is “in custody” for the purposes of habeas review. His consecutive sentences for murder and kidnapping ‘composed a continuous stream.’ In other words, he remains ‘in custody’ under all of his sentences until all are served. Hagos also satisfied Art. III’s case or controversy requirement because he is incarcerated on the kidnapping conviction which he is challenging. Additionally, the panel said it could not be certain that he would stay in prison for life if this federal petition was successful because Hagos is concurrently challenging his murder conviction in state court. Regardless, the panel ruled that the district court had to consider his habeas petition even if it would not hasten his release from prison because the kidnapping conviction could have adverse legal consequences. For example, this conviction can affect his custody level in prison.

Evidence Accused Took Polygraph Was Admissible on Cross Examination

United States v. Tenorio, 2015 WL 9466867 (12/29/2015) (NM): The panel finds that evidence the accused took a polygraph may be admissible in rebuttal or cross-examination to counter the accused’s attack on the nature of a criminal investigation or his claim that his statement to the police was coerced. The panel explained the jury is entitled to a full explanation of the interaction between the accused and the police. The accused’s “presentation of half of the story gave the government a strong interest in completing the other half.” Besides, noted the panel, the district court did not allow evidence of the result and instructed the jury to consider the polygraph evidence only in explaining the agents’ actions. It seems that in a different case, the accused might have a “strong interest in completing the other half” of the story that the government did not tell. Perhaps this case will help that argument.

Probable Cause for Possessing Illegal Child Pornography Not Established By Allegations of Possession of Legal Child Erotica; Good Faith Saves Search

United States v. Edwards, 2015 WL 9467065 (12/29/2015) (OK): A modest victory for collectors of child erotica. The panel holds that probable cause to believe a person has child pornography is not established by showing that he had only child erotica. This is so even when the person openly suggests he is sexually attracted to children. Here, this ruling only goes so far because the officer who prepared and executed the search warrant had a good faith belief that the warrant was properly issued by the magistrate. Therefore, the panel had to affirm the district court’s decision to deny the motion to suppress. Still, the panel’s opinion can be helpful if you have a probable cause issue involving child erotica (or what could be considered child erotica). It explains that the officer’s affidavit did not make a factual correlation between collecting child erotica and possessing child pornography. Without it, the affidavit lacked probable cause. The panel also distinguishes a factually similar case in which another panel found that possession of child erotica contributed to the totality of the information justifying a warrant to search for child pornography. In that case, Soderstrand, 412 F.3d 1146 (10th Cir. 2005), the person who first looked into Dr. Soderstrand’s safe told the police she saw ‘child pornography.’ Here, the officer alleged only that Edwards had legal child erotica. Additionally, the panel clarifies why certain ‘pedophilic tendencies’ logically do not prove that a person would have child pornography in the home. Specifically, it found that just because those who possess child pornography might frequent a website where Edwards posted and commented on child erotica pictures does not provide probable cause that he would have child pornography at his home.

One note regarding the good faith exception: the panel criticized the trial attorney for not looking at the images upon which the officer relied when drafting the probable cause affidavit. It said the appellate argument that the officer misled the magistrate by overstating the description of the pictures is specious when the defense attorney did not even know what they actually depicted.

Friday, January 15, 2016

Life Sentence for Drug Convictions Is Not Unreasonable

United States v. Craig, 2015 WL 9299409 (12/22/2015)(published)(KS): Craig pleaded guilty to being involved in a drug distribution conspiracy, maintaining a stash house and using a communication facility as part of the conspiracy. He got a life sentence because the district court applied a murder cross-reference and leadership and obstruction of justice enhancements. On appeal he challenged the court’s use of these enhancements. He also argued the life sentence was substantially unreasonable. The panel affirmed the life sentence.

The panel ruled that each enhancement could be established by merely a preponderance of the evidence. Craig argued that the murder cross reference was not supported by specific evidence tying it to the conspiracy. By combining two relevant conduct guideline clauses, the panel decided that the attempted robbery in which Craig participated was relevant conduct to the drug conspiracy. The “act” contemplated in USSG § 1B1.3(a)(1)(A) was the attempted robbery and the “harm that resulted” from § 1B1.3(a)(3) was the murder of one of the participants. Still, there was no specific evidence that the attempted robbery was part of or even related to the conspiracy. The panel was unconcerned; it found that ‘common knowledge’ that drug dealers rob each other and carry weapons to rob and to defend against robberies was enough proof that this attempted robbery was part of the conspiracy. In a footnote, the panel hinted that Craig should have argued that the shooting of his compatriot was not first degree murder and therefore, §2A1.1 was the wrong guideline to use. Regarding the standard of review, it acknowledged an intra-circuit conflict over whether a district court’s relevant conduct decision is a legal conclusion reviewed de novo on appeal or a factual finding reviewed for clear error.

The panel also held there was adequate evidence for the four-level leader organizer enhancement in § 3B1.1. It concluded the enhancement was warranted because Craig organized the attempted robbery in which two other men participated and there were more than 5 people involved in the drug conspiracy. Regarding the obstruction of justice enhancement, the panel said it was justified because Craig had refused to give a voice exemplar for which the court held him in contempt. Craig’s subsequent guilty plea to the charges for which the government needed the exemplar did not purge his obstructive behavior.

Finally, a life sentence was not unreasonable because one of Craig’s compatriots was killed during an attempted robbery which he organized. Also, since the guidelines are advisory, the court knew it could have departed from a life sentence. After considering a downward variance it decided a lower sentence was not appropriate

Removal Based on Marriage Fraud Upheld

Vladimirov v. Lynch, 2015 WL 6903447 (11/10/15) (Published) - The 10th upholds a removal based on marriage fraud. It was okay to admit a USCIS officer's report of a visit to Mr. Vladimirov's home where she found his ex-wife's stuff and not his wife's and Mr. Vladimirov admitted his marriage was a sham. The officer's absence was legitimate, although not explained in the opinion, and "seemingly reliable" hearsay is admissible and should not be rejected just because it is hearsay, the 10th says. The wife's withdrawal of a petition for Mr. Vladimirov's admission was not coerced where the officer confronted her with Mr. Vladimirov's confession and informed her she would be jailed if she did not tell the truth about the marriage. Informing someone of the legal consequences of marriage fraud and perjury is not coercive, the 10th asserts.

Unpublished Decisions

U.S. v. Redifer, 2015 WL 7075923 (11/13/15) (Kan.) (unpub'd) - The 10th affirms a conviction for a meth conspiracy, rejecting various evidentiary and instruction contentions, but overturns the district court's drug quantity calculation. First, with respect to the conviction, the 10th holds there was sufficient evidence to prove a conspiracy, even though: some of the conspirators were supporting their drug habits and some were trying to make a profit; some had their own customers; and they benefited separately from their own drug sales and did not pool their money. All that mattered was they had "congruent, if not identical, goals, involving meth distribution to make money." A photo of Mr. Redifer and other conspirators sitting on a couch holding guns was admissible because it was "highly probative" of the close association among the conspirators. It was not grounds for a mistrial that a witness mentioned an arrest of Mr. Redifer. The mention illustrated the witness's close relationship with Mr. Redifer because he retrieved Mr. Redifer's truck 3 times when Mr. Redifer was arrested. Although this made it seem as though Mr. Redifer was in and out of jail, other evidence already showed that, the 10th reasons. Rejection of Mr. Redifer's proposed buyer-seller defense-theory instruction was okay because the buyer-seller rule only applies if the defendant does not plan to resell the acquired drugs for profit. The involvement of a government agent does not require an instruction that an agent cannot be a co-conspirator where, as here, there were plenty of other non-agents involved in the conspiracy. It was not an abuse of discretion for the district court to deny Mr. Redifer's request that he have a table at trial that was separate from his co-defendant's. The 10th suggests the government submission at sentencing of jurors' opinions regarding the credibility of the witnesses would not violate Rule 606(b)(1)'s prohibition against the presentation of juror testimony about deliberations.

The 10th holds the evidence the district court cited for its drug quantity calculation did not support that calculation. The court assumed Mr. Redifer bought 1 1/2 ounces of meth every week for 9 months, but the evidence only supported that amount was bought for 3 months. Mr. Redifer had a temporary falling out with his supplier. There wasn't sufficient evidence to show that when their transactions resumed Mr. Redifer bought the same amount as before, Drug ledgers showed the amounts for some times, but not enough to justify the quantity used to calculate the guideline range. The 10th makes it clear that maybe the district court can justify its quantity determination by some other means. The 10th doesn't address Mr. Redifer's complaint that the district court should have granted a variance, given his lesser culpability and criminal history than the other conspirators. The 10th suggests maybe the district court will want to reconsider a variance after the redetermination of the drug quantity.

It was okay to apply a preponderance, rather than a clear and convincing, burden for enhancements for two two-level enhancements for threatening and physically restraining a drug user who eventually died. The 10th notes that, although it has suggested maybe some day it might apply a clear and convincing standard, this case did not present the extraordinary circumstances necessary for such a far-out proposition. Although the enhancement involved a dead person, the enhancements were not murder-based, the 10th explains.

U.S. v. Davis, 2015 WL 6876095 (11/10/15) (Okl.) (unpub'd) - The 10th grants plain error relief even though Mr. Davis did not address the plain error test. The 10th exercised its discretion to overlook that misstep and accept the government's concession that all 4 prongs of the plain error test were met. The district court imposed as a supervised release condition a complete prohibition on internet use. That condition plainly violated U.S. v. Ullmann, 788 F.3d 1260 (10th Cir. 2015).

Williams v. Warrior, 2015 WL 7292861 (11/19/15) (Okl.) (unpub'd) - The 10th holds the state courts didn't have to hold a trial within a specified period. It only had to begin the process towards trial after Mr. Williams prevailed on his § 2254 petition in the 10th. The 10th had directed that the district court conditionally grant a writ subject to the state's right to retry Mr. Williams within a reasonable time. The district court ordered the writ to issue unless the state "commenced trial proceedings within 180 days " Within 90 days, the state court appointed counsel and scheduled dates for conferences and hearings. The federal district court then granted the state's motion to close the habeas proceedings The 10th finds the district court 's 180-day order was consistent with the 10th's mandate and the state complied with the order by starting trial proceedings. It didn't have to hold a first-degree murder trial within 180 days.

Patterson v. Santini, 2015 WL 7003386 (11/12/15) (Col.) (unpub'd) - The 10th awards a procedural victory to a prisoner challenging BOP's refusal to give him compassionate release. The parties agreed to an administrative closure of the case while the BOP reconsidered compassionate release. The parties agreed Mr. Patterson would withdraw his lawsuit if he was granted compassionate release and he could have the case reopened if the BOP denied release. The district court closed the case, providing, in accordance with a local rule, that the parties may reopen the case upon a showing of good cause. The BOP denied release because, while he had served 2/3 of his sentence, he was only 76 and his medical condition was "unremarkable." Mr. Patterson sought a reopening of his case on the grounds that he agreed to the settlement under duress. The district court found no good cause and denied the request. The 10th says there's good cause when the parties wish to litigate the remaining issues that have become ripe for review. After the denial of release, the remaining issues in the case were ripe for review. So Mr. Patterson had shown good cause. It didn't matter that he did not prove his duress claim. The district court abused its discretion when it refused to reopen the case, the 10th decides.

U.S. v. Orduno-Ramirez, 2015 WL 7003397 (11/12/15) (Kan.) (unpub'd) - The 10th takes jurisdiction of an appeal where Mr. Orduno-Ramirez filed his notice of appeal late because his counsel didn't tell him about the order denying his motion to reopen his detention hearing until the day after the notice of appeal was due. But then the 10th affirms because the issue was not adequately briefed by the same lawyer.

Toler v. Troutt, 2015 WL 7003525 (11/12/15) (Okl.) (unpub'd) - On qualified immunity grounds, the 10th reverses a denial of summary judgment for a prison doctor in a § 1983 case where the doctor kept prescribing different meds for Mr. Toler's back pain than the meds consulting neurosurgeons recommended. Mr. Toler believed the recommended meds were the only meds that had worked for him in the past. Eventually a substitute doctor prescribed the recommended meds, while the doctor was on leave. It is not clearly established, the 10th says, that prescribing medications different from what consulting physicians recommend constitutes deliberate indifference, at least where the doctor continues to monitor the patient's condition. It's just a difference of medical judgment.
Rucker v. Gilmore, 2015 WL 69000891 (11/10/15) (Kan.) (unpub'd) - The ruling here is interesting ion that Wyandotte County Detention Center has a policy that all inmates must send all non-official mail on postcards, rather than in envelopes. Mr. Rucker challenged that policy but, acting pro se, didn't argue well enough to prevail.

Court Affirms Denial of Relief to Capital Habeas Petitioners

Jones v. Warrior, 2015 WL 6902610 (11/10/15) (Okl.) (Published) - The 10th upholds the denial of a § 2254 habeas petition in another Oklahoma capital case. Mr. Jones contended his trial counsel should have investigated and presented as witnesses two inmates who said they heard Mr. Jones' accuser admit he was the one who shot and killed the victim and Mr. Jones was not involved. According to the inmates, the accuser said he put the blame on Mr. Jones and testified against him in order to avoid the death penalty. He got 30 years instead. The 10th finds the Oklahoma Court of Criminal Appeals ("OCCA") applied the correct deficiency standard. Mr. Jones contended the OCCA gave too much deference to the attorney's decision not to investigate further by characterizing it as a strategic decision. Mr. Jones pointed out a decision that is not informed by reasonable investigation is not entitled to deference. But the 10th thinks the OCCA understood Mr. Jones' claim was one of failure to investigate. The 10th also rejects Mr. Jones' claim that the OCCA unreasonably found trial counsel made an informed strategic decision not to seek to corroborate the one inmate's account that the attorney knew about. The 10th says the OCCA never made that factual finding.

Jackson v. Warrior, 2015 WL 6902069 (11/10/15) (Okl.) (Published) - Yet another 10th affirmance of the denial of a capital defendant's § 2254 petition. The state accused Mr. Jackson of severely injuring a two-year-old boy and then hiding the boy in a crawlspace in near-freezing temperatures in a nearby vacant house and then hours later killing the boy's mother. The jury found the aggravating circumstance that Mr. Jackson created a great risk of death to more than one person. There was a problem with applying that aggravator to this case. The aggravator is only supposed to apply when the risk of death to one or more persons is in proximity---time, location and intent-wise---to the death of the another person. The OCCA did not decide if the aggravator applied. Instead it held it didn't matter because under Brown v. Sanders, 546 U.S. 212 (2006), the suspect aggravator didn't skew the jury's death decision. The jury considered the evidence for that aggravator when considering another aggravator it voted for---killing to avoid arrest or prosecution. The 10th rejects Mr. Jackson's contention that Sanders did not apply to a "weighing state," such as Oklahoma. In a weighing state, the jury compares against mitigating factors only aggravating factors that make a defendant eligible for the death penalty; in non-weighing states, the jury compares whatever aggravating factors there are, whether they are eligibility factors or not. Sanders eliminated the different treatment for weighing and non-weighing states, the 10th holds. So the OCCA applied the correct clearly established S Ct. law: Sanders. The 10th also thinks the OCCA understood the difference between the admissibility of evidence of the child's injuries and the use of that evidence to give aggravating weight to the valid sentencing factor of killing to avoid prosecution---a distinction Sanders requires to be made in applying its harmlessness test. The 10th further finds it was okay to admit a doctor's detailed testimony about the boy's injuries, even though the only relevance of those injuries to any legitimate aggravating factor was how they would motivate Mr. Jackson to kill the boy's mother to avoid prosecution. The 10th says it was reasonable for the OCCA to conclude that the more severe the nature of the boy's injuries, as only a physician could describe, the more likely Mr. Jackson was aware of the gravity of his crime and concerned about its ramifications.

The 10th finds the OCCA was not unreasonable in concluding counsel's failure to prevent a pastor's improper testimony was not sufficiently prejudicial. The pastor, who worked at a drug-abuse program for which Mr. Jackson volunteered, first testified that he felt Mr. Jackson's life in prison would have value. But when the prosecutor asked what his opinion would be if Mr. Jackson had intentionally beaten the boy's mother to death, the pastor said the death penalty would then be appropriate, but he didn't think the killing was intentional. The 10th concludes this was harmless, given the evidence of the horrible crimes Mr. Jackson committed and the mitigating evidence Mr. Jackson presented. The 10th says: "Given this ample evidence both weighing for and against the death penalty," the OCCA's decision was reasonable.

SR Condition Allowing Warrantless Searches OK'd

U.S. v. Flaugher, 2015 WL 7075380 (11/13/15) (Kan.) (Published) - The 10th rejects a clever argument that a district court may impose a warrantless-search supervised-release condition only on felon SORNA violators. Mr. Flaugher argued the provision in 18 U.S.C. § 3583(d) allowing such a condition for felon SORNA violators by negative implication means such a condition could not be imposed on everyone else. But the 10th sees the SORNA provision as granting more authority, not limiting it. The SORNA provision allows the imposition of a search condition without having to satisfy the three requirements [reasonably-related to § 3553(a) factors, no greater than necessary liberty deprivation, and consistent with policy statements] that apply to discretionary supervised release conditions.

Thursday, January 14, 2016

Tenth Mixes and Matches to Find that California Robbery Conviction is a Crime of Violence

United States v. Castillo, 2015 WL 8774441 (12/15/2015)(published)(UT): The panel finds there is no “one-crime of violence limit . . . in the Guidelines.” Castillo argued that his robbery conviction under California Penal Code § 211 was not a crime of violence as defined in USSG § 2L1.2. He said that § 211 sweeps more broadly than the generic crime of robbery because taking by fear includes a fear of unlawful injuries to property as well as to people. Too broad?, not at all, writes the panel; “a violation of § 211 achieved through threats to a person meets the generic robbery definition, while a violation of § 211 based on a threat to property corresponds to generic extortion.” In other words, if it wasn't a conviction for generic robbery, then it was a conviction for generic extortion. The panel comes to this conclusion because “nothing in the Guidelines or related authorities suggests a court is limited to considering only a single corresponding crime of violence when evaluating a state statute under the categorical framework.”

This approach seems to disregard Descamps’ measured, analytical approach and encourages the government to hunt around for as many other crimes of violence into which it can shoehorn the state statute at issue. The panel cites very little precedent for its approach. The main case upon which it relies, United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008) is a pre-Descamps case, which has been questioned by another Ninth Circuit panel in United States v. Dixon, 805 F.3d 1193, 1196-97 (9th Cir. 2015). There the court held § 211 is not a categorical match to the ACCA’s definition of violent felony because it criminalizes conduct not included within the ACCA’s definition of violent felony. But the Tenth also uses the ACCA’s definition of violent felony to determine whether a prior conviction is a crime of violence within the meaning of §2L1.2 and finds, contrary to Dixon, that a conviction under § 211 is a “violent felony.” The Tenth panel does not mention Dixon in its opinion.

Unpublished Decisions

U.S. v. Morgan, 2015 WL 6773933 (11/6/15) (Okl.) (unpub'd) - A very troubling reversal of a downward variance to probation. The 10th also affirms the conviction. First, the conviction. The 10th holds the bribery statute, 18 U.S.C. § 666(a)(1)(B), only requires corrupt intent by the defendant, not the other participant. In this case, the owner of an assisted living place complained to Mr Morgan, who was a powerful state legislator and a lawyer, that the state agency overseeing assisted living places was giving him a hard time. Mr. Morgan responded: "This is the way it works. You pay me a $1,000 a month retainer." The owner did so, paying the bills to Mr. Morgan's law office, although no lawyering was done. About 7 months later, Mr. Morgan submitted legislation that protected assisted living places from some of the things the overseeing agency had been doing. All this was sufficient for a rational jury to convict Mr. Morgan. The 10th also holds that the government did not violate Brady. The 10th acknowledges Brady requires the disclosure of tacit agreements with prosecution witnesses. But it finds there was no tacit agreement with the briber-owner, even though there were lots of crimes the government could have charged against him and his daughter, but didn't, and assets it could have forfeited, but didn't. The only agreement proven was the briber's bank fraud plea agreement. Mr. Morgan could have crossed the witness about the government's failure to fully criminally pursue the witness. That's all he was entitled to.

The district court included in the guideline calculation all the bribes Mr. Morgan was charged with, totaling over $684,000 (and 63 counts), even though the jury acquitted him of those charges or was hung on them, except for the one bribery count. involving $12,000 , So Mr Morgan's guideline range calculation shot up to 188 to 235 months. Luckily, the stat max was 120 months (otherwise known as 10 years). The district court varied downward to 5 years probation for the following reasons, among others: the government failed to prove the other payments were illegal, lowering the theoretical range to 41 to 51 months; Mr. Morgan's conviction was based on "very suspect evidence, based on a convicted felon's testimony, resulting in a bill that no one has ever complained about"; Mr, Morgan was adequately punished by the publicity and the loss of his law license and physical and financial health; there were 482 letters of support; and the sentence should be in the range for the one count divided by 63 for the total number of counts charged.

The 10th is extremely unhappy with the sentence. The first thing it does is grant the government a procedural favor. The government only argued substantive unreasonableness. The 10th thought a lot of the arguments sounded more like procedural unreasonableness claims. So it treats them as such, although it acknowledges ordinarily the government's position on appeal would have waived procedural unreasonableness as an issue. The 10th exercises its discretion to consider waived arguments. The 10th reviews for plain error, waxing poetic about the "important purpose" that plain error review serves. The 10th finds a number of procedural errors. (1) The district court was wrong to disagree with the verdict. (2) The court was wrong to consider the collateral consequences of prosecution and conviction. The bad publicity and loss of license and health were not the sentence. It's the sentence that must reflect the seriousness of the offense. The 10th explains that giving Mr. Morgan a break due to the collateral consequences would give an unearned break to the elite, while the less privileged get more prison time. (3) The court did not consider the unwarranted disparity its sentence created. (4) The 10th expresses concern about the "no harm no foul" remark regarding the legislation Mr. Morgan sponsored. That remark minimizes the seriousness of the offense because the real victim of the crime, the 10th says, is faith in honest government. The 10th goes on to find the errors plain, even though the 10th has yet to address the errors. Other circuits have and explicit language of 28 U.S.C. § 994(d) and USSG 5H policy statements clearly prohibit what the district court did And the errors affected the sentence and adversely affected public reputation, etc. because Mr. Morgan undermined our faith in good government and should have gotten significant prison time. As you can see, there are helpful nuggets in this decision for those of us who end up arguing plain error in the future.

The 10th goes on and find the sentence substantively unreasonable because it's "easy" to reach that conclusion. The 10th feels the district court was wrong to consider the other 62 counts for which Mr. Morgan was not convicted as mitigating. On the contrary, the court should have considered them aggravating because the 10th finds the evidence proved Mr. Morgan's guilt of those counts by a preponderance. The district court placed undue emphasis on the letters, the 10th also believes The letter writers believed Mr. Morgan was innocent or took into account the irrelevant collateral consequences. It was not surprising that a powerful man like Mr. Morgan could get so many people to write on his behalf. The collateral consequences might satisfy some of the needs for specific deterrence, but not for general deterrence, the 10th opines. And many of you can appreciate the 10th's reasoning that Mr. Morgan's loss of his law license is no big deal because he was in the "twilight" of his legal career anyway. Consequently, Mr. Morgan must receive "a significant period of incarceration," "to send a message," not "the slap on the wrist" he got. Again some of the discussion here provides helpful fodder [e.g. substantive reasonableness review "is not a rubber stamp"] for our very own never-successful substantive unreasonableness arguments. On the other hand, the decision evidences a troubling hostility to a probation sentence.

Judge Holmes concurs. He believes the bribery statue prohibits a general quid-pro-quo, a bribe accepted as part of an exchange for political action There need not be any specific connection between the bribe and the particular action. The judge feels the government waived any procedural unreasonableness argument. But he agrees the sentence was substantively too lenient. "The public must have confidence there are consequences when their leaders succumb to temptation," the judge says. But he finds it harder to reach the substantive unreasonableness conclusion than the majority does because it's never easy to reach such a conclusion, despite what the majority says. Judge Holmes finds it especially important that the judge varied a lot from the guideline range and the guidelines are structured to avoid a probation sentence. He stresses that going down all the way to probation is really a tremendous qualitative difference from the guideline range, requiring a "close look at the record" every time that happens. In other words, there has to be a whole lot of mitigation to justify a non-custodial sentence.

U.S. v. Jasso-Chavera, 2015 WL 6735648 (11/4/15) (Okl.) (unpub'd) - A § 2255 movant gets a remand regarding a claim that his counsel did not file a requested notice of appeal. The government attached to its response trial counsel's affidavit that said, after first refusing to sign an acknowledgement of the right to appeal and a statement that he did not want to appeal, Mr. Jasso-Chavez did sign the form. In his reply Mr. Jasso-Chavez said he only signed the form because counsel told him it wasn't convenient for counsel to file the appeal now, but counsel would pursue the appeal later. The district court denied relief without referring to Mr. Jasso-Chavez's reply. The 10th holds Mr. Jasso-Chavez's allegations, if true, were enough to show he didn't knowingly and voluntarily withdraw his appeal request. The 10th says an evidentiary hearing may not be necessary. It suggests the district court might possibly be able to take the "rare" step of making a credibility judgment just based on the affidavits. Perhaps, the 10th suggests, this could be done after the interpreter of the attorney-client conversation submits an affidavit. The 10th helpfully indicates it is presently not a problem that Mr. Jasso-Chavez's reply was not signed under penalty of perjury. Generally, movants should be given a chance to correct the defect, the 10th says.

Waters v. Coleman, 2015 WL 6685394 (11/3/15) (Col.) (unpub'd) - The 10th reverses the summary-judgment denial of qualified immunity regarding various officers, depending on whether the officers acted while the deceased, Mr. Ashley, was struggling or after he was subdued. At the Denver Zoo, a security guard was troubled by Mr. Ashley trying to cool off under a water fountain. A number of officers joined into what turned into a melee with the officers coming to believe Mr. Ashley was suffering from excited delirium, which, if true, meant he would be physiologically more likely to die from a prolonged struggle, but also more likely to physically resist restraint with unusual strength. First, there were punches and multiple tasering and then the Orcutt Police Nunchaku (a plastic controlling device) to control Mr. Ashley's legs. Mr. Ashley was eventually handcuffed, two people put their knees on Mr. Ashleys' shoulders, another kneeled on his legs, and Mr. Ashley's ankles were crossed and put to his buttocks. Then Mr. Ashley remained on his stomach for 2 to 5 minutes with his legs still being restrained. Mr. Ashley vomited, stopped breathing and died. It was not clearly established that officers used excessive force when Mr. Ashley was resisting. But force used for the last 2 to 5 minutes after he was subdued were clearly established to be excessive force. The 10th remands for trial.

Portillo Perez v. Lynch, 2015 WL 6743572 (11/5/15) (unpub'd) - The 10th holds solicitation of prostitution is a crime involving moral turpitude, even if there is no element requiring an overt act and even if the proposed sexual act is not sexual intercourse.

Former Sheriff's Conviction for Depriving a Person of His Constitututional Rights Affirmed

U.S. v. Rodella, 2015 WL 6735896 (11/4/15) (N.M.) (Published) - The government accused former Rio Arriba County Sheriff Rodella of having his son chase down Mr. Tafoya as part of road-rage and eventually jumping into Mr. Tafoya's passenger seat and threatening him with a gun. Following the arrival of sheriff's department officers, Mr. Tafoya spent several days in jail. Sheriff Rodella was convicted of depriving Mr. Tafoya of his rights protected by the 4th Amendment not to be subjected to unreasonable seizure by a law enforcement officer under two theories:(1) Sheriff Rodella unlawfully arrested Mr. Tafoya and (2) he used unreasonable force in the course of arresting Mr. Tafoya. The 10th holds there was sufficient evidence to support both theories.

As for the unlawful-arrest theory, the sheriff "forfeited" [by which the 10th means "waived"] his argument that Mr. Tafoya could be arrested for the wrong placement of his license plate or expired temporary tags by not raising those possibilities below. There was sufficient evidence the sheriff was not in uniform and therefore could not legally detain or arrest Mr. Tafoya for a traffic violation. Plus the jury could reasonably find Mr. Tafoya's flight and any reckless driving were provoked by the sheriff. Officers can't improperly provoke flight, including by putting a person in reasonable fear of physical harm. As for the excessive force theory, Sheriff Rodella's notion that more than de minimis injury is required is only true with respect to handcuffing. Plus, the 10th footnotes there was more than de minis injury due to the emotional trauma caused by Sheriff Rodella's conduct.

The district court allowed in 3 prior incidents for 404(b) purposes. (1) a woman testified the sheriff tailgated her for at least 5 minutes, after he passed her, she flashed her high beams at him, he came back and stopped her and engaged in an angry argument with her. (2) A man testified the plain-clothed sheriff pulled him over after he passed the sheriff's SUV, in response to the question: "Do you know why I pulled you over?" the civilian responded: "I don't even know who you are?" The civilian was unimpressed with the sheriff's driver's license, saying: "I've got one of those too." The sheriff became upset and threw his badge at the civilian. The sheriff said he pulled the civilian over for passing in a no-passing zone, but it turned out passing was legal there. (3) A woman testified the sheriff tailgated her and her husband, then entered the passing lane, pulled even with them and yelled out the window to "pull the f*** over. Now.." In plain clothes the sheriff lectured them in an aggressive manner: "You don't speed in my county." The 10th observes that 404(b) evidence is just fine if its admission is supported by "some propensity-free chain of reasoning." In this case, the 10th concedes, the jury could have inferred the improper conclusion that the sheriff possessed the character traits of anger issues and a need to exercise power over others. But importantly the jury was not required to make such inferences to also infer the sheriff purposely had his son drive in a threatening manner to provoke Mr. Tafoya into a disrespectful act, that the sheriff purposely intended to force Mr. Tafoya to submit to his authority and not to enforce any traffic law, and the sheriff knew that his identity as a law enforcement officer was not readily apparent to Mr. Tafoya until the end of the encounter. This is "logic" that "recognizes a prior act involving the same knowledge decreases the likelihood the sheriff lacked the requisite knowledge in committing the charged offense," says the 10th. So, the evidence proved willfulness. If you can distinguish this "logic" from using the evidence for propensity purposes, more power to you. The 10th rejects a 403 claim because the sheriff's alleged conduct towards Mr. Tafoya was more serious and prejudicial than the 404(b) conduct. Plus there was a "limiting" instruction, which "limited" the jury to considering the evidence for "motive, intent, plan, knowledge, absence of mistake or accident."

Relatedly, the 10th rejects a contention that the prosecutor in closing improperly encouraged the jury to use the 404(b) evidence for propensity purposes. (1) The 10th says it was okay to describe the sheriff as "a man who lets his distorted ego lead to aggression he cannot control." The prosecutor then referenced the first 404(b) testimony and contrasted the sheriff's ego with Mr. Tafoya's personality and demeanor. The prosecutor was just contrasting personalities and demeanors, the 10th explains, not seeking propensity inferences. (2) The 10th says referring to Mr. Tafoya's work with disabled adults had nothing to do with the 404(b) evidence and so was not improper (3) The prosecutor described the tailgating of Mr. Tafoya and then said: "Boy, is that familiar." Even if improper, the 10th concludes, no harm done, given the district court's cautioning instruction after the defense objected, the evidence against the sheriff, the rest of the proper closing remarks and the "limiting" instruction. (4) The prosecutor said: "Rodella was taught never to pull alongside a car like he did" in one of the 404(b) incidents. This was okay because the prosecutor was just saying the sheriff ignored his training on both occasions. That's not seeking a propensity inference, the 10th says. (5) The prosecutor said: "what about his other victims?" and then described each of the 404(b) incidents. This was proper explanation of using the evidence for the proper 404(b) purposes. (6) The 10th does find it was wrong to say during a description of one of the 404(b) incidents, that the sheriff's cowboy hat should have been black. But that was not prejudicial. (7) The prosecutor's reference to a 404(b) victim's emotional trauma to prove Mr. Tafoya's emotional trauma, to the extent it was improper, was not prejudicial, given the ample direct evidence of Mr. Tafoya's trauma. (8) The prosecutor said: "when you're thinking of Mr. Tafoya, I'm asking you to think about the [404(b) victims]. The 404(b) couple was upset. Rodella's not concerned about the 404(b) victims, certainly not Mr. Tafoya's. His ego trumps all." "Presumably," the 10th finds, those comments asked the jury to infer the sheriff acted willfully. So, based on that questionable presumption, the comments were proper.

Finally, the admission of training materials regarding how to pursue a vehicle were relevant to show the sheriff knew his pursuit of Mr. Tafoya was unlawful for a number of reasons and so his conduct was willful.

Convictions for Violating the Controlled Substance Analogue Enforcement Act Reversed

U.S. v. Makkar, 2015 WL 7422599 (11/23/15) (Okla.) - Reversal of two defendants' convictions for violating Controlled Substance Analogue Enforcement Act, conspiracy, and money laundering, based on selling incense at a convenience store, because of a defective mens rea instruction and improper exclusion of defense evidence. In McFadden, the Court decided that the government must prove that the defendant knew either that the drug in question (1) had both a chemical structure substantially similar to a drug controlled under the Controlled Substances Act (CSA) and a central nervous system effect substantially similar to that of a schedule I or II CSA-controlled drug, or (2) was outlawed by the CSA or Analogue Act. The government opted for option one, but introduced no evidence at trial about defendants' knowledge of the chemical structure of the incense. It persuaded the court to instruct the jury that it could infer knowledge that the incense had a substantially similar chemical structure to JWH-18 from the fact defendants knew the incense had an effect substantially similar to marijuana. This was illogical and so wrong it meets the plain error standard. Two drugs with a dissimilar chemical structure can create similar effects; the instruction wrongly permitted the collapsing of two mens rea requirements into one. The government cannot "take an Olympian leap over the first essential element and touch down only on the second." In a footnote, the court explains that it does not decide whether it is permissible to prove knowledge of a chemical structure similar to one drug and an effect similar to a different drug. The district court also erred by disallowing hugely relevant defense evidence that defendants offered to allow testing by state law enforcement officers who came calling on them to determine the legality of the incense and to stop selling it until the results were in.