Tuesday, April 23, 2019

Court rejects argument that second indictment charging a second conspiracy violated double jeopardy

United States v. Leal, 2019 WL 1758851 (10th Cir. April, 22, 2019) (NM): After Leal was convicted of one drug conspiracy, the government filed another indictment for an alleged separate conspiracy. In his motion to dismiss, Leal argued the two conspiracies were interdependent and a conviction on the second indictment would violate his double jeopardy rights. When the district court denied Leal’s motion to dismiss, he filed an interlocutory appeal. The panel found proceeding on the second indictment would not violate the Double Jeopardy clause’s protection against the prosecution for the same offense.

The accused bears the burden of proving that two conspiracies are the same for double jeopardy purposes. To be successful, he must show that the conspiracies shared a common goal, covered a common time, occurred in the same place or involved the same people. Here, there was no evidence establishing any of these factors. Additionally, the activities of the first conspiracy were not necessary or advantageous to success of the second conspiracy and so, neither shared a common goal. Although the government used the same informant in both cases, Leal’s agreement to help him buy drugs was not a conspiracy as a matter of law and so was not evidence that the conspiracies were interdependent.

Monday, April 22, 2019

Stash house and aggravating role enhancements affirmed in drug case

US v. Lozano, 2019 WL 1746941 (10th Cir. 4/19/19) (published): Mr. Lozano pled guilty to conspiracy to distribute and possession with intent to distribute cocaine in a multi-year conspiracy. He challenged a two-level guideline enhancement for maintaining a premise for the purpose of distributing a controlled substance and a three-level enhancement for aggravated role. The Court affirmed both enhancements. The Court applied a “totality of the circumstances” test and affirmed that it is not necessary to show that the drug activity is the sole activity in the house for it to be a primary purpose. In this case, the “stash house” enhancement was supported by evidence that Mr. Lozano leased and paid the utilities at the house, and that it was not where he or his family lived. The district court’s finding that Mr. Lozano had no reason to maintain the house other than as a place to bring, unload, and distribute drugs was not clearly erroneous. The aggravating role enhancement was also not clearly erroneous. The district court relied on Mr. Lozano’s exercise of decision-making authority over two specific co-conspirators, including providing the means to enable their trafficking activities, and his routine claim to a larger share of the profits despite his lack of on-the-ground involvement.

Wednesday, February 20, 2019

Money-laundering convictions reversed for insufficient evidence; other claims rejected

U.S. v. Christy, 17-3122 (Feb. 15, 2019) (D. Kan.): Ms. Christy was charged with one count of bank embezzlement, six counts of making false bank entries, six counts of failing to report taxable income, and 10 counts of money laundering. A jury convicted Ms. Christy on all charges except four money-laundering counts.

On appeal Ms. Christy argued that (1) cumulative prosecutorial misconduct violated her due process rights, (2) the evidence was insufficient for her money-laundering convictions, and (3) the jury instructions improperly omitted a materiality element for the false-bank-entry charges. The Tenth Circuit (1) found that Ms. Christy had not shown the prosecutor’s comments influenced the verdict, (2) reversed Ms. Christy’s money-laundering convictions because of insufficient evidence of intent; and (3) affirmed Ms. Christy’s false-bank-entry convictions because, even assuming materiality is an implied element of 18 U.S.C. § 1005, its omission from the jury instruction was harmless error. Remanded with instructions to vacate the money-laundering convictions and resentence Ms. Christy.

Friday, February 08, 2019

OK Assault and Battery on a Law Enforcement Officer is not a violent felony

United States v. Johnson, 911 F.3d 1062 (10th Cir. 2018) (OK): Using the categorical approach, the court finds Oklahoma assault and battery on a police officer is not a violent felony as defined by the force clause. The state statute can be violated through either a battery on a law enforcement officer or an assault and battery on the officer. The panel said because battery in Oklahoma can be committed with only the slightest touch it does not require violent force capable of causing physical pain or injury. Following its earlier decision, United States v. Degeare, 884 F. 3d 1241, 1248 (10th Cir. 2018), it also decides that after reviewing state court opinions, the text of the statute and the record of conviction, it cannot determine for certain whether the statutory alternatives are means or elements and so it must treat the statute as indivisible.

Government Could Enforce Appellate Waiver in Appeal of Denial of 2255 Motion

United States v. Lopez-Aguilar, 912 F.3d 1327 (10th Cir. 2019) (NM): When Lopez appealed the denial of his Johnson II based 28 U.S.C. § 2255 petition to correct his sentence, the government moved to enforce his plea agreement’s appellate waiver. The panel disagreed with Lopez that the government had waived this argument by not making it in the district court. In § 2255 proceedings, a district court can either summarily dismiss the motion or order a response. Here, the district court did not order the government to respond, so it could raise the waiver for the first time on appeal.

Illegal Seizure of Defendant's Home Invalidated Later Consent to Search

United States v. Shrum, 908 F.3d 1219 (10th Cir. 2018) (KS): 10th Circuit reverses the denial of a suppression motion in a firearms case. Believing his 30 year old wife had overdosed, Shrum called 911. Police and paramedics went to the house and took her to the hospital where she was pronounced dead. Police later told Shrum the coroner would need the medication his wife was taking. Shrum said he would go to house and get it. Police accompanied Shrum to the house. When they arrived Shrum was not allowed inside. Police asked Shrum for consent to search the house for the medication. He agreed. Inside the investigator found firearms and ammunition.

The panel’s analysis focused on a person’s possessory interests in property: a Fourth Amendment seizure occurs when there is some meaningful government interference with an individual’s possessory interests in property. It held Shrum’s consent was invalid because it was obtained as a result of the initial illegal seizure of his home. The panel said that without valid consent the warrantless seizure of Shrum’s home, even if there was probable cause, is per se unreasonable. Since the government did not suggest there were exigent circumstances, the officer had no reason to seize and then enter the home. Shrum demonstrated a casual connection between the illegal seizure and the evidence taken from the home because ‘but for’ the investigator’s illegal entry into the home, he would have never seen the firearms and ammunition used for the federal prosecution.

Vehicle Stop Was Not Supported by Particularized Suspicion

United States v. Martinez, 910 F.3d 1309 (10th Cir. 2018) (UT): The court finds the government failed to offer a specific, articuable and objective factual basis to believe that Martinez was engaged in criminal activity. Too often courts accept the government's attenuated inferences as reasonable suspicion. Martinez is a good case to cite because the court disassembles the government's proposed inferences and thereby rejects its suggestion the inferences established reasonable suspicion. It explained that broad inferences derived from estimates and general descriptions do not prove the officer had a reasonable suspicion to detain the person. At best, the officer who stopped Martinez on the highway had an unparticularized suspicion or hunch.

A police dispatcher reported a bank robbery in Winslow, Arizona. One male suspect wore a Bud Light Hat and the other seen running from the bank wore a blue and white checkered shirt and blue jeans. Another report was issued describing suspicious activity in Flagstaff that occurred before the Winslow robbery. There, a white Cadillac was seen outside a bank earlier in the morning. The driver was said to a Native American man wearing a light blue checkered hoodie and a Bud Light hat. After this second bulletin was sent, Officer Phillips was driving west on I-40. He remembered from one of the bulletins that the driver was wearing glasses but he could not remember which one. Fifteen minutes after he heard the second report, he saw a white Cadillac traveling east on I-40. According to him, white Cadillacs are a rare sight on that stretch of I-40. He turned around and when he pulled up next to the car he had difficulty seeing through the heavily tinted windows but was able to make out from the driver’s outline that he was wearing glasses and "had facial features that led him to believe the driver was Native American male."

Soon afterwards, the officer pulled the car over. He said he did so because he believed it was involved in the Winslow robbery. He conceded the driver had not committed any traffic violations.
The officer told the driver to get out. His earlier observations were partially inaccurate: the driver was a woman, who might not have been Native American - he could not identify her nationality or ethnicity - but she was wearing glasses. He smelled the odor of marijuana coming from the car. Martinez was in the front passenger seat and he detained both of them. The officer searched the car and seized evidence from an unrelated bank robbery in Utah.

The court emphasized for this stop to be reasonable, the officer had to have a particularized and objective basis for detaining Martinez. The district court used four ‘facts’ to justify the detention, none of which persuaded the panel. See the opinion for the Circuit’s dissection of the district court’s findings and reasoning.

False Claims Act Conviction Supported by Sufficient Evidence

United States v. Glaub, 910 F.3d 1334 (10th Cir. 2018) (CO): Glaub “purchased” a $73k Corvette by sending the purchase order to the government. (He sent other bills as well.) He argued that he had a First Amendment right to ‘petition’ the government and his intent was not fraudulent because he believed the government should pay a citizen’s debt. The panel wasn’t convinced. It affirmed his convictions for violating 18 U.S.C. § 287, the False Claims Act. It was for the jury to decide if Glaub had the requisite criminal intent when he sent his bills to the Dept. of Agriculture. The panel said the First Amendment provides no protection for knowingly fraudulent or frivolous claims. Still, the district court instructed the jury on Glaub’s theory of defense - that his political associations and beliefs colored his perceptions and therefore, he did not have the intent to defraud the government or to submit a false or fraudulent claim. Evidently, the jury believed the government’s evidence was sufficient. The Circuit agreed.

Hobbs Act Robbery Is Categorically a Crime of Violence

U.S. v. Jefferson, 17-3150, 911 F.3d 1290 (Dec. 28, 2018) (D. Kan.): Mr. Jefferson was convicted of five counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), (b)(1), and three counts of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). On appeal, Mr. Jefferson argued Hobbs Act robbery was not a “crime of violence” because § 924(c)(3)(A) required the predicate offense to have a force element and Hobbs Act robbery had only a force means, and the jury should have decided whether Hobbs Act robbery qualified as a “crime of violence.” The Tenth Circuit held that the definition of a “crime of violence” is a question of law for the judge and Hobbs Act robbery categorically constitutes a crime of violence. Affirmed.

Petitioner's Due Process Claims Based on Allegedly Sleeping Juror and Jury's Exposure to Media Rejected

Smith v. Aldridge, 2018 WL 4394997 (10th Cir. 9/17/18) (Okla.) – In a 28 USC § 22554 habeas case, the Tenth rejects the following three claims that the state court unreasonably determined the facts; there was no argument that the state court decision was contrary to, or an unreasonable application of, clearly established federal law. Smith had been convicted of enabling child abuse of her two-year-old daughter. She argued:

(1) she was denied her right to an impartial jury and due process because a juror slept during much of the trial. She submitted five juror affidavits and two affidavits from trial attendees supporting that fact. However, the trial judge asserted that he watched the jury carefully and only saw one juror sleeping at one point during the trial. It was reasonable for the state court to conclude that the judge's statement was more persuasive than the affidavits and to credit the judge's statement without holding an evidentiary hearing. Although the trial judge did not have the benefit of the five juror affidavits when he concluded no juror continuously slept, he made firsthand observations of the trial. There were five lawyers in the courtroom and the fact that none of them complained about a sleeping juror supports the judge's belief that no juror slept throughout the trial. AEDPA barred the Tenth from ordering an evidentiary hearing because the requirements of § 2254(d) and (e)(2) were not met.

(2) her counsel ineffectively failed to ask the court to do something about the sleeping juror. For the same reasons it rejected the first claim, the Tenth decides counsel did not thereby afford ineffective assistance.

(3) violation of the right to an impartial jury and due process based on the jury's exposure to outside information and prejudicial media coverage. The state court concluded Smith failed to establish any alleged misconduct prejudiced her. The trial court took significant steps to ensure that jurors were not exposed to extraneous outside information and allowed a change of venue. Only three jurors said they had previously heard of the case. Even if some jurors accessed some extraneous information, there was no showing that the state court unreasonably concluded that exposure did not result in prejudice.

OK Death Sentence Affirmed

Grissom v. Carpenter, No. 16-6271, 11cv1456 R, 2018 WL 4171015 (Aug. 31, 2018) (W.D. Okla.): Mr. Grissom was convicted in Oklahoma state court of first degree murder and other offenses and sentenced to death. After exhausting his state court remedies, Mr. Grissom filed a §2254 petition raising eleven grounds for relief. The district court denied the petition and granted a certificate of appealability on the issue of whether Mr. Grissom’s constitutional rights were violated when the state trial court concluded that the evidence did not support instructing the jury on lesser-included offenses. Mr. Grissom appealed. The Tenth Circuit granted a COA on two additional issues: ineffective assistance of counsel and cumulative error. The Tenth Circuit held that the state appellate court did not unreasonably apply Strickland in rejecting Mr. Grissom’s ineffective assistance of counsel claim based on lack of prejudice; trial counsel was not ineffective for failing to request a jury instruction on intoxication and for the lesser-included offense of second-degree murder; Mr. Grissom was not entitled to a jury instruction on involuntary intoxication; and the alleged errors, considered together, did not deprive Mr. Grissom of his right to a fair trial and due process.

Upward Variance Based on Criminal History Upheld

US v. Hoaks, 2018 WL 4238267 (10th Cir. 9/6/18)(unpublished): The court affirms sentence increase to five years from an advisory guideline range of 24-30 months. Defendant defrauded the Postal Service of nearly $62,000 by buying stamps with bad checks. She pled guilty to conspiring with her twin sister to violation 18 USC 371. The PSR noted the "seriousness and continuity" of the defendant's criminal history, which included 18 convictions, of which 13 did not count for various reasons, including age. At sentencing, the defendant described her abuse as a child, her relationship with her son, and her acceptance of responsibility. The sentencing court focused on her criminal history and varied upward. On appeal, the defendant contended the court did not adequately explain its reasons for the upward variance at the hearing or in the statement of reasons. Applying plain error review, because the defendant did not object to the procedure below, the panel finds that the district court's explanation was adequate and she couldn't show prejudice. The sentence was also substantively reasonable in light of the defendant's criminal history.

NM Armed Robbery (Deadly Weapon) and Agg Assault Are ACCA Predicates

US v. Baker, 2018 WL 4232030 (10th Cir. 9/6/18) (unpublished): 2255 movant was properly denied Johnson relief because his two New Mexico armed robbery with a deadly weapon convictions and his New Mexico aggravated assault conviction qualified as ACCA predicates under the elements clause.

Gun Defendant Gets New Trial Because Jury Instructions Incorrect

US v. Scott, 2018 WL 4182114 (10th Cir. 8/30/18) (unpublished): On plain error review, the Court reverses a conviction for felon in possession of a firearm because the jury instructions failed to include the element that the defendant intended to control the firearm. The error was not harmless because the gun was found in a car with defendant and three other individuals, none of whom claimed the gun. The circumstantial evidence was unpersuasive. The gun's location in the car meant it was easily available to another passenger and awkwardly placed for the defendant. The DNA evidence was inconclusive, as the defendant's DNA was one of three profiles on the gun and the government expert admitted the DNA was "trace DNA or touch DNA," so it could have been put on the gun through secondary transfer. A red bandana next to the gun could have belonged to anyone in the vehicle. The case is remanded for a new trial.

District Court Allowed to Consider Acquitted Conduct At Sentencing

US v. Sadler, 2018 WL 4181734 (10th Cir. 8/30/18) (unpublished): No certificate of appealability for this 2255 movant. The defendant assaulted his girlfriend while he possessed a firearm. He was charged with various state offenses and with felon in possession of a firearm in federal court. He received a sentence of 120 months on the federal charge. In state court, he was ultimately convicted only of aggravated assault. The Tenth Circuit rejects all his arguments: 1) the district court properly refused to take judicial notice of testimony from the state trial under FRE 201(b). 2) Defendant's counsel was not ineffective merely because he was facing disciplinary action at the time of defendant's federal trial and was disbarred after defendant's federal sentencing. Defendant fails to point to any deficient performance by his trial counsel. 3) Defendant was not entitled to resentencing. The district court had enhanced his sentence under the guidelines for the kidnapping, and he was later acquitted of that charge. However, the district court could properly consider acquitted conduct at sentencing.

Duress Instruction Not Warranted Where Theft Motivated Allegedly by Fear of Stepfather

U.S. v. Dixon, 17-7010, 15cr0084 RAW, 2018 WL 4039125 (Aug. 24, 2018) (E.D. Okla.): Ms. Dixon was charged with embezzlement and theft from an Indian tribal organization under 18 U.S.C. § 1163. Prior to trial, Ms. Dixon filed a notice of the defense of duress, on the theory that she faced an imminent threat of sexual assault from her stepfather and that her posttraumatic stress disorder caused her to believe that she could not escape the assault except through theft. Ms. Dixon requested Tenth Circuit Pattern Jury Instruction No. 1.36 and filed a written proffer of the expert testimony in support of her duress defense. The trial court rejected the defense, and the jury convicted Ms. Dixon. On appeal, the Tenth Circuit held that Ms. Dixon failed to establish the second element of the duress defense by failing to show that she had no reasonable, legal alternative to violating the law.

Enhancement for using premises to store drugs warranted

U.S. v. Murphy, 17-5118, 17cr0005 CVE, 2018 WL 4042095 (Aug. 24, 2018) (N.D. Okla.): Mr. Murphy pleaded guilty to two counts of possession with intent to distribute heroin, two counts of possession with intent to distribute methamphetamine, and two counts of being a felon in possession of a firearm. The PSR added two levels for maintaining a premises for the purpose of distributing a controlled substance under U.S.S.G. § 2D1.1(b)(12). Mr. Murphy objected to the premises enhancement. The district judge sentenced Mr. Murphy to 70 months imprisonment, which was within the applicable guideline range (57-71 months) if the § 2D1.1(b)(12) enhancement were not considered. Mr. Murphy appealed. The Tenth Circuit held that the § 2D1.1(b)(12) enhancement was warranted because Mr. Murphy’s use of his home to store drugs for the purpose of distribution was both frequent and substantial.

Wednesday, August 29, 2018

U.S. v. Mann, 17-2117, 14cr3092 JP, 2018 WL 3798284 (Aug. 10, 2018) (NM, published): Mr. Mann was charged with violating 18 U.S.C. § 924(c)(1)(A)(iii) by discharging a firearm during and in relation to Assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6). Mr. Mann moved to dismiss the indictment, arguing that § 113(a)(6), is not a crime of violence within the meaning of § 924(c)(3)(A). The district court granted the motion to dismiss, reasoning that § 113(a)(6) is not a crime of violence because it is possible to violate the statute with a mens rea of recklessness. The Tenth Circuit reversed extended the reasoning of Voisine v. United States, 136 S.Ct. 2272 (2016) holding that reckless conduct qualifies as the volitional use of physical force against the person or property of another for purposes of § 924(c)(3)(A). The panel concluded that 18 USC § 113(a)(6) is categorically a crime of violence under 18 U.S.C. § 924(c)(3)(A).
United States v. Marquez, 2018 WL 3744063 (10th Cir. August 7, 2018) (NM): The panel finds that; (1) the evidence was sufficient for a rational jury to find Marquez guilty of using a phone to facilitate a drug felony, participating in a conspiracy to distribute over 500 grams of methamphetamine, and possessing methamphetamine with the intent to distribute it; (2) the district court did not err when it asked a witness one question to clarify a factual matter; and (3) the district court did not abuse its discretion or plainly err when it admitted testimony from government witnesses.

There are two points to consider in this otherwise modest opinion. First, the court finds that although Marquez was never seen with methamphetamine and none was recovered from his possession, the jury still could convict him of possession with intent to distribute. This is so because in recorded calls he was heard saying he still had “a prior batch of low-quality methamphetamine and a new batch of high-quality methamphetamine.” The panel wasn’t troubled by the fact that he “didn’t specifically use the words ‘drugs’ or methamphetamine.’” It said Marquez’s statements were ‘direct evidence’, not circumstantial evidence of possession. Therefore, it was not necessary to link him to “an observed substance that a jury can infer to be a narcotic.”

Second, the panel said a police officer may testify, as a lay witness, about the accused’s role in the conspiracy and ‘code words’ and phrases based on what she heard while listening to recordings of various telephone calls. Regarding the accused’s role, the officer’s testimony was “based on her personal observations.” Apparently, personal observations include listening to recordings. The officer’s testimony about the meaning of code words used in those calls was not expert testimony masquerading as lay testimony because it “was based on what she learned during this investigation.” It is unclear whether the defense made this particular objection but it might be helpful to do so if you are confronted with similar circumstances.
United States v. Williams, 2018 WL 3733816 (10th Cir. August 7, 2018) (OK): The panel affirmed the district court’s conclusion that the government may garnish Williams’ bank account for the total amount of restitution because the judgment said it was “due immediately.” Williams argued that according to the schedule of payments, if restitution is not paid immediately, then he had to make payments of 10% of his quarterly earnings. Since he did not pay immediately, the payment schedule went into effect and the government’s application to garnish his bank account was inappropriate. The panel disagreed. The payment schedule was just a way to gather unpaid amounts. Garnishment was appropriate because the judgment said the amount owed was due in full on the date of the judgment. However, before ordering the funds released to the government, the panel instructed the district court to address the bank’s objection to the release of all funds because it had frozen an amount to cover a fraud matter.

United States v. Bacon, 2018 W: 2978137 (10th Cir. August 21, 2018) (UT): In federal court, Bacon pleaded guilty to bank robbery and was sentenced. Afterwards, he filed Fed.R.Crim.P. 41(g) motion to get back property that state officials seized when he was first arrested. This rule provides an “equitable remedy” and the person must show “irreparable harm and an inadequate remedy at law” to succeed. Here, because Bacon had adequate remedies under state law to get his property back (or to seek compensation) and since there was no proof the state ever turned his property over to federal authorities, the district court correctly denied Bacon’s motion.

Monday, August 27, 2018

Sandberg v. Englewood, Colorado, 2018 WL 1180971 (3/7/18) (Col.) (unpub'd) - In a § 1983 civil rights case, the 10th finds a Fourth Amendment violation, but denies relief. A concerned person saw Mr. Sandberg walking down the street with a pistol in a holster on his hip. For some reason, that person calls 911 and alleges Mr. Sandberg might be involved in "some form of workplace violence." Officers find Mr. Sandberg at an auto repair shop. The officers draw their weapons,confront Mr. Sandberg, search him and take his pistol, holster and bullets. The officers learn the shop's owner had given Mr. Sandberg permission to wear his pistol in the shop as long as he didn't remove the gun from its holster. Eventually the officers contact the 911 caller and learn there was no basis to believe Mr. Sandberg was involved in workplace violence or anything else illegal. Nonetheless, the officers continued to detain Mr. Sandberg while trying to figure out what to charge him with. They detained him for about 4 hours. The officers gave him a summons for disorderly conduct. That charge was eventually dismissed. The officers kept Mr. Sandberg's property for five months. The 10th thinks the initial detention was okay. The "workplace violence" allegation was enough. But, after the officers talked to the 911 caller, there was no reasonable suspicion to detain Mr. Sandberg. Even a brief extension after talking to the 911 caller violated the Fourth Amendment. But the 10th lets the officers off the hook by virtue of qualified immunity. It wasn't clearly established, the 10th rules, that the officers were wrong because of the lack of case law with facts like those in this case.

U.S. v. Sarracino, 724 F. App'x 673 (3/9/18) (N.M.) (unpub'd) - The 10th holds federal second-degree murder and New Mexico manslaughter are crimes of violence under USSG § 4B1.1. Reckless crimes and crimes that could involve indirect force satisfy the elements clause.

U.S. v. McFarland, 726 F. App'x 709 (3/9/18) (okl.) (unpub'd) - On mootness grounds, the 10th dismisses Mr. McFarland's attempt to challenge the magistrate judge's refusal to require the government to present witness for cross-examination at the preliminary, supervised-release-revocation hearing. Mr. McFarland was able to cross witnesses regarding his violation of various state laws at the final revocation hearing. To avoid getting mooted out he had to show he would be subjected to the same alleged constitutional violation. But he could not show he would again face a supervised release revocation proceeding.
United States v. Francis, 2018 WL 2646755 (June 5, 2018) (CO): The panel finds the district court improperly applied USSG’s § 2K2.1(b)(5) firearms trafficking enhancement. Application note 13 explains that a court may impose a 4 level increase when the accused knew or had reason to believe the person receiving the firearms had a prior felony conviction for a crime of violence or controlled substance offense. Here, Francis was the straw purchaser for an ATF informant with a felony. The informant told Francis he had a “bullshit felony” conviction and that he had a “stereotypical background.” The panel said these statements “suggested the CI did not have a felony conviction for a crime of violence.” Thus, the government did not prove that the enhancement should apply. However, the panel found at trial the government established beyond a reasonable doubt that the CI was an actual felon.
The panel also held that the district court plainly erred in ordering sex-offender treatment as a special condition of supervised release. Contrary to circuit precedent, the district court did not provide a “generalized statement that would justify” that treatment. Regardless, Francis was unable to show this error affected his substantial rights. The record demonstrated the court had a reason to order treatment. Francis had recently been convicted of a sex offense and failed to complete the court-ordered sex offender treatment program.

United States v. Tapaha, 2018 WL 2647028 (June 5, 2018) (NM): Tapaha was convicted of assaulting her boyfriend with a truck. On appeal she argued that the district court violated her constitutional rights to confrontation and to present a defense. Three witnesses would have detailed the history of abuse Tapaha suffered at the hands of her boyfriend. This history also would have been described during cross-examination of the boyfriend. This evidence, Tapaha she said, was essential to her claim that her fear of harm was reasonable and that she acted in self-defense.
The panel rejected Tapaha’s arguments. But its conclusions may be beneficial to you in future cases. First, the panel found the district court properly excluded some of the boyfriend’s testimony because it was speculative. He admitted he was too drunk to remember being hit or to know how much of a threat he was to Tapaha. Citing Fed.R.Evid. 602 and 701, the panel said that when a witness “lacks any recollection of the incident”, testimony about the incident or the accused’s state of mind is irrelevant. This is so because that testimony is not based on personal knowledge. In a case where the complaining witness was too intoxicated to remember anything, this ruling can help you restrict the testimony.
Second, the panel said the testimony of the three witnesses would have been cumulative to other evidence Tapaha presented. Tapaha offered it as reverse Fed.R.Evid. 404(b) evidence and as proof of a specific character trait allowed by Rule 405. The panel found the testimony “would not have added anything significant to the testimony already admitted.” Additionally, this evidence would not have bolstered Tapaha’s “weak” self-defense claim. When the government tries to present numerous incidents of misconduct using Fed.R.Evid. 404(b) or 405, the panel’s ruling here may help you limit that evidence.
U.S. v. Melgar-Cabrera, 892 F.3d 1053 (6/8/18) (N.M.) (Published) – Mr. Melgar-Cabrera was sentenced to life imprisonment pursuant to 18 U.S.C. § 924(j) for causing the death of a person while using a gun to commit an 18 USC § 924(c) crime of violence. He appealed, contending that Hobbs Act robbery, the underlying crime for which he was charged, is not categorically a crime of violence under 18 U.S.C. § 924(c)(3)(A).
Before addressing the merits, the Tenth Circuit held that 18 U.S.C. § 924(j) was separate crime, and not sentencing enhancement, overruling United States v. Battle, 289 F.3d 661 (2002).
On the merits of the appeal, Mr. Melgar-Cabrera contended that Hobbs Act robbery does not categorically constitute a crime of violence under § 924(c)(3)(A). Mr. Melgar-Cabrera argued that (1) the term “force” as used in the definition of robbery in 18 U.S.C. § 1951(b)(1) does not require violent force, whereas “physical force” as used in § 924(c)(3)(A) does; and (2) unlawfully taking a victim’s property against his or her will “by means of . . . fear of injury” does not require the attempted or threatened use of physical force.
As to the first argument, the 10th concluded that the word “force” as used in § 924(c)(3)(A) means “violent force,” as the Court held in Johnson v. United States, 559 U.S. 133 (2010) as to § 924(e)(2)(B)(i). The 10th applied the categorical approach and held that Hobbs Act robbery “can only be satisfied by violent force.” Thus, the 10th held that physical force as used in § 924(c)(3)(A) “means violent force—that is, force capable of causing physical pain or injury to another person.” As to the second argument, Mr. Melgar-Cabrera contended that placing a victim in fear of injury by threatening the indirect application of physical force is not sufficient to constitute the requisite threatened use of physical force because it focuses on the result of a defendant’s conduct, i.e., bodily injury, and not the means of inflicting it and relied on United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005). The 10th recognized in United States v. Ontiveros, 875 F.3d 533, 536 (10th Cir. 2017) that the Supreme Court abrogated Perez-Vargas “[to] the extent that [it] holds that indirect force is not an application of ‘physical force.’ ” Ontiveros, at 538 (quoting United States v. Castleman, 134 S.Ct. 1405, 1415 (2014)). “To the extent Mr. Melgar-Cabrera contends that committing Hobbs Act robbery by putting someone in fear of injury does not necessarily constitute the threatened use of physical force because it can be done through indirect force, Ontiveros has foreclosed his argument.” As a result, the 10th affirmed Mr. Melgar-Cabrera’s conviction and life sentence.
U.S. v. Lynch, 881 F.3d 812 (2/5/18) (Col.) (Published) - The 10th affirms a conviction for assault or intimidation of a flight attendant that interferes with his or her duties in violation of 49 U.S.C. § 46504. The 10th holds that only general intent, not specific intent, is required to violate the statute, that is, the defendant just has to know the facts that make the defendant's conduct illegal. The 10th finds general intent best achieves the statute's purpose of protecting air-travel safety. The 10th doesn't find relevant the Supreme Court's more specific mens rea requirement imposed in Elonis v. U.S., 135 S. Ct. 2001 (2015), regarding the threat statute, 18 U.S.C. § 875(c). All Elonis means, the 10th says, is that "we read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct." Requiring the § 46504 conduct to be voluntary and deliberate fits the bill. A defendant who is intimidating enough to prevent an attendant from fully performing his or her duties to the point of undermining everyone's safety shouldn't be able to avoid culpability because the defendant didn't intend to intimidate the attendant, the 10th says.
The 10th beats back an overbreadth challenge. Mr. Lynch asserted his demanding more alcohol, calling the flight attendants foul names and threatening to take down the airline with negative publicity, while offensive, were just exercises in free speech. The 10th finds the statute sets out a content-neutral prohibition on conduct [not profane language] in a specific time, place and manner while serving a significant governmental interest. The 10th points out Mr. Lynch's behavior was less benign than he described because he screamed in attendants' faces, shouted vile insults at them and refused to calm down, not to mention sexually harassing by inappropriate touching.
The 10th also rejects an unconstitutional vagueness challenge. Mr. Lynch contended there was no clear line between impolite conduct and criminal conduct because the line depended on how a particular attendant feels. He claimed the only interference he caused was "someone in row 16 had to wait five minutes before getting a soda refill." On the bright side, the 10th acknowledges that Johnson II means you can succeed on a vagueness claim without showing every application of the statute is vague. But here, the 10th says, ordinary people can tell what type of conduct is prohibited, where it is prohibited and what result the statute is intended to prevent.
The 10th affirms the district court's refusal to give an acceptance of responsibility reduction. Mr. Lynch contested several factual contentions at trial [e.g. his touchings were only to get the attendant's attention and as a conciliatory gesture]. And his profanity, screaming and aggressive conduct during his arrest wasn't the behavior of someone accepting responsibility, the 10th adds.

U.S. v. Goosen, 723 F. App'x 608 (1/31/18) (N.M.) (unpub'd) - The 10th affirms a 15-offense-level upward variance for a heroin distribution offense from 12 to 18 months to 90 months. The judge varied based on finding that 13 months before the instant offense Mr. Goosen injected a friend with heroin that caused his friend's death. The 10th rejects Mr. Goosen's Fifth and Sixth Amendment challenges because, according to 10th precedent, a district court may consider an uncharged-conduct finding in imposing sentence when the finding doesn't result in a mandatory minimum or a sentence beyond the stat max. The 10th distinguishes this case from U.S. v. Allen, 488 F.3d 1244 (10th Cir. 2007), where the 10th found substantially unreasonable an upward variance based on the defendant's uncharged conduct. In that case, the 10th says, the uncharged conduct was unrelated to the instant offense and the district court imposed a sentence based on the guideline range for the uncharged conduct. Here, the 10th explains, the uncharged conduct was related to the offense of conviction and the district court varied because the conduct affected the adequacy of the advisory guideline range, not to punish for the conduct. The variance was because Mr. Goosen's continued heroin distribution after the death demonstrated he would not be adequately deterred, and the public not adequately protected, by a mine-run guideline sentence. The 10th notes its precedent has rejected Justice Scalia's dissenting opinion in Jones v. U.S., 135 S. Ct. 8 (2014), that "any fact necessary to prevent a sentence from being substantively unreasonable must be admitted by the defendant or found by a jury."
Grant v. Royal, 886 F.3d 874 (3/30/18) (Okl.) (Published) - The 10th affirms an Oklahoma death sentence with Judge Moritz dissenting. The majority opinion is 165 pages long. (1) The 10th holds Mr. Grant only exhausted his substantive, not his procedural, incompetence issue in state court, rendering the procedural issue defaulted. The state's addressing the procedural issue in its appellate brief didn't meet Mr. Grant's burden to prove fair presentation of the issue. Substantive incompetence addresses whether a defendant was incompetent. Procedural incompetence addresses whether the court should have had a bona fide doubt about the defendant's competence, which would trigger a requirement to inquire about the matter. Mr. Grant didn't raise the substantive incompetence issue in his § 2254 petition. So he's out of luck on the incompetence issue.
(2) The 10th rejects Mr. Grant's ineffective assistance claims.
(3) The 10th finds the OCCA reasonably handled a common Oklahoma mitigating-circumstance instruction/prosecutorial misconduct issue.
(4) The 10th rejects Mr. Grant's claim that the OCCA unconstitutionally devalued the use of comparative juror analysis in assessing a Batson claim.
(5) It was reasonable, the 10th rules, for the OCCA to find no error in the trial court exclusion of certain reports that concerned topics addressed by live witnesses. The OCCA could have reasonably concluded the Constitution doesn't require that "every scrap or scintilla of mitigating evidence" be admitted.
(6) The 10th holds there are no grounds for relief for cumulative error. But the 10th does affirm that cumulative-error analysis reflects clearly established S. Ct. law. And the 10th affords de novo review because the OCCA didn't address the merits of Mr. Grant's cumulative-error claim. Still, the assumed ineffective assistance of counsel deficiencies don't add up "synergistically" to enough prejudice to justify relief.
Judge Moritz dissents on the prosecutorial misconduct issue. She votes to overturn the death sentence. She believes the OCCA misunderstood Mr. Grant's argument and so de novo review, rather than application of the stringent AEDPA standard of review, applies to the issue. She disagrees that Mr. Grant forfeited the de novo argument, noting AEDPA not only seeks to protect federalism and comity, it also "seeks to ensure that defendants aren't convicted or sentenced in violation of federal law."

U.S. v. Cash, 727 F. App'x 542 (3/29/18) (Okl.) (unpub'd) - The 10th refuses to apply Mathis and Johnson II to a § 2255 sentence correction. Mr. Cash complained that, due to some confusion about the various counts of conviction, the district court by mistake sentenced him as though he were subject to the ACCA. The government agreed the ACCA didn't apply. As a result, the district court rearranged the sentences so that Mr. Cash's ultimate sentence was reduced from 35 years to 30 years. The court didn't hold a hearing. Mr. Cash contended he was entitled to a resentencing in which the latest case law would apply. The 10th says that, if a defendant discovers a sentencing error and the Rule 35 period has already elapsed, the defendant may file a § 2255 motion to address "obvious sentencing errors." The 10th doesn't explain how the defendant can avoid procedurally defaulting any claim---a defense apparently the government didn't raise here. The 10th declares what Mr. Cash got was a sentence correction of a technical mistake, not a resentencing. So, the 10th holds, he isn't entitled to application of the good new case law.

U.S. v. Tinoco, 2018 WL 1517129 (3/28/18) (N.M.) (unpub'd) - In a case perhaps relevant to clients who have a medical marijuana permit, the 10th affirms a supervised release condition prohibiting Mr. Tinoco from using marijuana, despite his presumably sincere religious belief that required marijuana ingestion. The government has a compelling interest in the prohibition, the 10th rules, because: Congress requires the condition for all defendants that they refrain from using controlled substances to prevent drug abuse among convicts; and Congress has found marijuana has a detrimental effect on the health and general welfare of the American people.

Crosby v. Fox, 715 F. App'x 870 (3/22/18) (Col.) (unpub'd) - The 10th rejects a prisoner's § 2241 claim that his calling a guard a "white ass country cracker" was entitled to First Amendment protection. Backtalk to a guard isn't constitutionally protected, the 10th opines. The prison hearing officer who revoked Mr. Crosby's good time for the incident considered Mr. Crosby's benign definition of "cracker," but was unpersuaded by it, the 10th decides.
U.S. v. Ellis, 868 F.3d 1155 (8/24/17) (Kan.) - A nice Alleyne ruling overturning a life sentence in a drug conspiracy case. The government attempted to § 851 Mr. Ellis to a life term based on his 2 prior drug convictions and a 21 USC § 841(b)(1)(A) crack cocaine amount of 280 grams and/ or a cocaine powder amount of 5 kilograms. The jury found Mr. Ellis guilty of being involved in a conspiracy involving those amounts. However, to impose the mandatory minimum Alleyne required the jury to find one or the other of the amounts was within the scope of Mr. Ellis's agreement and reasonably foreseeable to him. The jury instructions did not require the jury to make that finding. In reaching its holding, the 10th acknowledges Allleyne overruled a really bad 10th Circuit case, U.S. v. Stiger, 413 F.3d 1185 (2005), which held the defendant could be held responsible for everything the drug conspiracy was responsible for. The government failed to prove the error harmless beyond a reasonable doubt. Regarding the powder cocaine, the government relied at trial on the Mexican drug cartel with nothing much particular to Mr. Ellis. For the crack, there was evidence Mr. Ellis was personally involved with 25.3 grams, but the government didn't present overwhelming evidence with respect to the additional 254.7 grams it needed. The government presented a witness that maybe tied Mr. Ellis to that amount of crack, but Mr. Ellis contested that testimony.
Luckily, the 10th refuses to apply the invited error rule. The district court referred to off-the-record feedback convincing it not to submit to the jury the verdict form the 10th says it should have submitted. The record didn't reflect whose feedback that was [why are these instructions discussions off the record?]. On the record, defense counsel just said counsel had no objection to the verdict form. Defense counsel did not submit the verdict form. Not objecting did not constitute invited error. Mr. Ellis himself preserved the error for review. He went pro se at sentencing and contended he shouldn't be held responsible for all the drugs the conspiracy was involved in. "I didn't know none of these dudes" from the Mexican cartel, he eloquently argued. Importantly, Mr. Ellis was under no obligation to object to the jury instructions or the verdict form at trial. A defendant "isn't obliged to object to something inimical to his cause ensuring his eligibility for a longer sentence." "If the government wanted a heightened sentence under § 841(b)(1)(A), it was obliged to ensure the jury received proper jury instructions and a special-verdict form with spaces enabling the jury to find Ellis's individually attributable powder and crack cocaine amounts," the 10th rules. So Mr. Ellis should be sentenced under § 841(b)(1)(C).
The 10th goes against Mr. Ellis on every other issue he raised. There was sufficient evidence for the conspiracy and maintaining drug-involved premises convictions. The indictment was "close enough for government work" when it alleged Mr. Ellis maintained drug premises a month after there was trial evidence that he did. This was "reasonably near" the indictment's date. The government also presented enough evidence Mr. Ellis intended to distribute the 2.5 grams of powder cocaine in his possession when he was found with a gun in violation of § 924(c). Officers found other dealing evidence in Mr. Ellis's bag, including other drugs, a scale and an empty sandwich-bag box. The right-to-counsel-at-sentencing claim was moot, the 10th decides, and orders a full resentencing with different counsel than the counsel Mr. Ellis had at trial. Mr. Ellis's "bare assertion" that the complete breakdown in his communication with his attorney continued during the supervised-release proceeding didn't preserve the challenge to the sentence resulting from that proceeding. And, anyway, Mr. Ellis knowingly and voluntarily waived counsel during the supervised- release-violation hearing.

U.S. v. Cone, 868 F.3d 1150 (8/24/17) (Okl.) - The 10th affirms denial of a traffic-stop motion to suppress. The 10th says it's okay for an officer to ask about a driver's criminal history. The 10th has always been okay with a computer background check so that the officer knows who the officer is dealing with for safety reasons. And questions would take less time. So extending detention for criminal history questions does not violate the Fourth Amendment. A question the 10th didn't have to address was: what if the officer asked the questions and then did a background check? That would seem a bit redundant. Here the officer was about to do a background check when he discovered a gun after Mr. Cone had acknowledged a criminal history. Mr. Cone raised an interesting question about the propriety of travel plan questions [e.g. what are you doing here?] when he was already at his destination and his traffic violation was for a non-functioning license plate light. But the 10th avoids the issue. Any problem with the travel plan questions was irrelevant because those questions did not cause the gun discovery. The officer saw the gun when he legitimately asked Mr. Cone to get out of the pickup for safety reasons. Drugs were found soon after. The 10th does sort of suggest travel plan questions might make a difference if the answers prompted the officer to ask Mr. Cone to get out of the pickup for safety reasons. But the 10th relies on the district court's finding that Mr. Cone's answers had nothing to do with the officer's asking Mr. Cone to exit his pickup.
U.S. v. Ferrell, 725 F. App'x 672 (3/2/18) (Col.) (unpub'd) - The 10th reverses a § 2K2.1(b)(6)(B) enhancement for using a firearm in connection with another felony offense. The 10th finds the enhancement wasn't based on reliable facts because, in violation of Fed. R. Crim. P. 32, the district court adopted without explanation the objected-to presentence report findings that both found circumstances justifying an enhancement and adopted the plea agreement stipulations that didn't justify an enhancement. There was insufficient evidence, the 10th holds, to support that Mr. Ferrell possessed the meth, marijuana and drug paraphernalia in someone else's garage. While Mr. Ferrell was arrested in the garage, there wasn't enough evidence he possessed the contraband items because the evidence indicated he was seen leaving the house, not the garage, and he fled to the garage only after he saw parole officers.

U.S. v. Ramos, 723 F. App'x 632 (2/27/18) (N.M.) (unpub'd) - An officer unlawfully prolonged the traffic stop by questioning a passenger while making believe he was checking the VIN. The 10th finds VIN inspections to be okay, as long as the officer, as in this case, doesn't physically enter the car, see U.S. v. Caro, 248 F.3d 1240 (10th Cir. 2001). But the 10th does find the officer unlawfully extended the detention by questioning the passenger.
The 10th finds the district court's analysis of the voluntariness of Mr. Ramos' verbal and written consent is "faultless." The usual non-coercive factors prevail, e.g. no gun to the head, in public view, conversational tone, etc. Finally, the three Brown v. Illinois , 422 U.S. 590 (1975), factors indicate the consent was not tainted by the stop prolongation. First, there was close temporal proximity, which favored suppression. But, second, there was the intervening circumstance of the officer going through the typical written consent process. Third, the 10th refuses to find the officer's behavior was purposeful and flagrant, even though he admitted he conducts VIN inspections to investigate crimes other than traffic violations. The 10th relies on the lack of evidence the officer routinely extends the duration of traffic stops when he does VIN inspections. Even though the inspection took at least 80 seconds, the 10th sees no contradiction the finding that the inspection was "pointed and narrow." Most troubling of all, the 10th holds the officer was not questioning the passenger "in the hope that something might turn up" because he spotted oddities in Mr. Ramos' travel plans and suspected something was going on---"something more than an unsupported hunch," the 10th claims, but, mind you, not enough to constitute reasonable suspicion. No exclusionary rule applies here, the 10th concludes.

U.S. v. Bouziden, 725 F. App'x 653 (2/27/18) (Okl.) (unpub'd) - The 10th finds Oklahoma's manslaughter statute divisible and manslaughter in the heat of passion to be a "violent felony" under the ACCA. The 10th finds the statute divisible even though the same punishment applies to each of 3 subsections. The 10th relies on cases and jury instructions treating the subsections as separate crimes. Accordingly, the 10th applies the modified categorical approach and finds Mr. Bouziden was convicted of manslaughter in the heat of passion. The general intent of that crime is enough mens rea for the ACCA's elements clause. And killing another person requires the use of violent force under Johnson I, 559 U.S. 133 (2010), the 10th says.

Starr v. Quiktrip Corporation, 726 F. App'x 692 (3/1/18) (Okl.) (unpub'd) - The 10th holds Batson doesn't protect jury selection discrimination against military veterans. Prior military service isn't an immutable attribute and, according to the 10th, "veterans aren't saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process."
U.S. v. Ortiz-Lazaro, 884 F.3d 1259 (3/16/18) (N.M.) (Published) - The 10th affirms reentry and reentry-revocation sentences challenged on multiple grounds. The 10th acknowledges § 3553(c)(2) requires a statement of specific reasons for imposing a sentence above the sentence range the Sentencing Commission recommends for supervised release violations. But here the district court gave specific enough reasons to justify an upward variance from the top end of 12 months to 24 months. The 10th says it was enough for the court to note Mr. Ortiz's return to the U.S. a month after his supervised release started, his inability to conform his behavior to the supervised release terms, his "blatant disrespect" for immigration laws, and the need to protect the public from Mr. Ortiz committing serious violent offenses of the type he committed before. The district court's failure to complete a written statement of reasons, while in violation of 28 U.S.C. § 994(w)(1)(B), was harmless. The court wouldn't have changed its sentence if it had filled out the form. So there's no enforcement of § 994(w)(1)(B). The 10th also holds the district court considered the danger of unwarranted disparity by acknowledging the sentence range and then giving reasons for a sentence above the range. It sounds like that conflicts with U.S. v. Lente, 647 F.3d 1021 (10th Cir. 2010). The 10th thinks it was good enough for the district court to say it considered the § 3553(a) factors in explaining why it imposed the revocation sentence consecutively to the reentry sentence, as the policy statements recommend. The 10th explains: "We don't require the court to consider each § 3553(a) factor individually." The 10th finds the sentences to be substantively reasonable for the reasons the district court gave. The 10th is untroubled by the district court's statement that it relied on a non-existent violation report. No harm, says the 10th. Finally, the 10th rejects the argument that the district court giving the identical reasons for both sentences established a double jeopardy violation. No error, the 10th concludes, because Mr. Ortiz was sentenced for two separate crimes.

U.S. v. Banks, 884 F.3d 998 (3/6/18) (Okl.) (Published) - The 10th affirms Mr. Banks' 16 drug-related convictions and sentence. (1) The 10th affirms the suppression denial. There was probable cause for an arrest warrant even though there was no controlled buy. Three Confidential informants (CIs) corroborated each other with consistent reports about the drug-trafficking organization and two identified Mr. Banks as a member. Officers' independent investigation confirmed some aspects of their statements.
(2) The 10th finds sufficient evidence for all 16 convictions. Mr. Banks' knowing possession of the cocaine in a hamper in someone else's house was established by Mr. Banks' statement to his mother during a recorded jail call that the cocaine was his. Not considering evidence indicating otherwise, when Mr. Banks said "my shit," he meant "my drugs." Mr. Banks' knowing possession of the cocaine and gun in another person's attic was established by his girlfriend's testimony that he kept crack in the hotel room from which they went to the house with the attic.
(3) The 10th finds the district court didn't abuse its discretion in its evidentiary rulings. The initial overview testimony about the structure of the gang, including Mr. Banks' place in its hierarchy, and how the investigation began was okay. Other evidence supported the testimony, the 10th finds, including Mr. Banks' own mother testifying he sold drugs. The witness never offered an opinion about the trustworthiness of Mr Banks or any upcoming witness or about Mr. Banks' guilt. Evidence of Mr. Banks' 3 prior drug-related convictions was admissible under Rule 404(b). Mr. Banks' primary defense was lack of knowledge. So the convictions countered that defense and, besides,"our court has time and again held that past drug-related activity is admissible under 404(b)."
Judge Phillips dissents on a protective sweep issue. He notes the officers could have kept safe by just driving away once they arrested Mr. Banks outside the house. He also points out officers took their time on this sweep to examine items unconnected to the supposed hiding gang member, e.g. the Oster bag, wallet and photograph. He further observes, if the officers were really worried about the gang member endangering their safety, they wouldn't have entered the attic the way they did: officers hoisted another officer to push a panel aside and lift his head into the attic to see what was there. Judge Phillips opined that, while some times a protective sweep can be justified by an outside-the-house arrest, the justifications for such a sweep must be more compelling than in the in-house arrest circumstance. In this case, Judge Phillips found insufficient reason to suspect the gang member was in the house and endangering people. Several hours had passed since Mr. Banks' threats, an officer had heard only one male voice in the house, no officer bothered to run the license plate of the car in the driveway and there was no explanation how someone in the attic could be a danger to the officers outside the house.

Kendall v. Olsen, 2018 WL 1294174 (3/15/18) (unpub'd) - The 10th holds a warrantless search of a backyard was justified by exigent circumstances. Officers canvassed the neighborhood to find a three-year-old boy who had been missing for about one hour. Mr. Kendall's house was 10 houses from the boy's house. An officer searched Mr. Kendall's backyard looking for the boy and ended up shooting and killing Mr. Kendall's attacking dog. The 10th finds the officer had an objectively reasonable basis to believe there was an immediate need to take action to protect the boy from serious injury because he had apparently wandered off and the chances of finding the boy unharmed was decreasing rapidly with time. There was no need for any specific information indicating the boy was in that particular backyard. And the search's scope was properly limited to looking in places the officer couldn't see from outside the yard and that were accessible to the boy.

Rusk v. Tymkovich, 714 F. App'x 913 (3/14/18) (Utah) (unpub'd) - The panel refuses to recuse itself even though Chief Judge Tymkovich was the defendant in the case. The 10th cites its "duty to sit" and the "rule of necessity' that a judge is qualified to decide a case even if he or she would normally not be allowed to do so.
United States v. Roach, 2018 WL 3543151 (10th Cir. July 24, 2018)(published): Roach was convicted of coercing another into prostitution in violation of 18 U.S.C. § 1591(a)(1). On appeal he argued the district court’s ruling restricting his cross-examination violated the Confrontation Clause and the Federal Rules of Evidence. The panel held Roach forfeited the Confrontation Clause argument because his pretrial motions did not mention the cross-examination topics he tried to pursue at trial and at trial he did not “state a Confrontation Clause ground on which the court should permit the cross-examination” on those topics. (The panel dismissed the evidentiary rules argument because even if there was error, it was harmless.) To preserve an objection to the exclusion of evidence (or an excluded line of cross-examination questioning), counsel must make an offer of proof at trial, (a) describing the evidence and what it tends to show - i.e. the particular topic for cross-examination - and (b) identifying the grounds for admitting the evidence - i.e. the legal basis for the cross-examination questions (Confrontation Clause and pertinent evidentiary rules). The offer of proof may be made during questions and objections at trial, in motions in limine or at pretrial conferences. Remember, on appeal one “forfeits” a challenge to the court restricting cross-examination if one uses a different ground to support the objection than one did at trial.
Roach filed a pretrial motion which argued that according to the Confrontation Clause, he should be allowed to question a cooperating co-defendant about her “deal with the Government.” The district court agreed and let him do so at trial. However, at trial he also wanted to ask her about the potential sentence she could receive if she did not cooperate. The court did not let him question her on this topic and on appeal Roach said that decision violated his Confrontation Clause rights. The panel disagreed.

United States v. McLinn, 2018 WL 3542978 (10th Cir. July 24, 2018)(published): According to 18 U.S.C. §922(g)(4), a person who has been adjudicated a mental defective, or who has been committed to a mental institution, is prohibited from possessing a firearm. McLinn was charged with violating this statute based on his prior temporary detention at a Kansas mental institution. He pleaded guilty conditionally and preserved for appeal the issue of whether it is a matter of fact or law if someone has been adjudicated a mental defective or has been committed to a mental institution as described § 922(g)(4). In the district court, he moved to dismiss the charge under Fed.R.Crim.P. 12(b)(3)(B)(v), claiming that, as a matter of law, this prior detention did not disqualify him from possessing a firearm under § 922(g)(4). The court found that the issue was one of fact, not law, and denied the motion without prejudice. The circuit panel agreed with McLinn. On remand, it said, the district court must decide as a matter of law: (1) whether a state court’s determination that there was “probable cause to believe that McLinn was suffering from a severe mental disorder, that he lacked the capacity to make an informed decision concerning treatment and was likely to cause harm to himself or others was a sufficient adjudication under the statute” and (2) whether McLinn was “‘involuntarily committed’ to a mental institution given that this term has been defined in 27 C.F.R. § 478.11 to exclude commitment ‘for observation.’”
U.S. v. Pacheco-Donelson, 893 F.3d 757 (6/22/18) (Colo.)(published) – Mr. Pacheco-Donelson appealed a special condition of supervised release, which banned him from associating with any gang members. He challenged the ban only with respect to its inclusion of two of his foster brothers.
Mr. Pacheco-Donelson did not object in district court based on procedural reasonableness. The 10th determined he did show plain error. Additionally, the 10th found that the special condition was substantively reasonable because it was reasonably related to the statutory sentencing factors and did not deprive Mr. Pacheco-Donelson of greater liberty than reasonably necessary.

U.S. v. Vance, 893 F.3d 763 (6/22/18) (N.M.) –The 10th held that a police detective had reasonable suspicion for a traffic stop based on a lane change contrary to N.M. Stat. Ann. § 66-7-317(A). Mr. Vance argued that he did not violate the statute. The government asserted the traffic stop was valid under Heien v. North Carolina, 135 S.Ct. 530, 536 (2014) (“The question here is whether reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition. We hold that it can.”), and that Mr. Vance violated the statute by not ascertaining the safety of his multi-lane movement. Judges Kelly and Murphy determined that the district court did not clearly err in finding that Mr. Vance could not have adequately determined whether his lane change could be made with safety, because a . . . passenger vehicle in the center lane blocked his view. Vance, 893 F.3d at 774.
In a concurring and dissenting opinion, Judge Phillips opined that the statute allowed Mr. Vance to change lanes so long as he ascertained safety and that the detective lacked reasonable suspicion for the stop. Vance, 893 F.3d at 776. Judge Phillips concluded: “I see no cases cited from the government authorizing stops to try to obtain confessions about conceivable crimes—or in hopes of finding evidence of unknown, unrelated crimes, evidence such as the smell of marijuana Detective Rael detected soon after the stop. We shouldn’t authorize stops in such circumstances.” Vance, 893 F.3d at 777.
U.S. v. Ford, 882 F.3d 1279 (2/23/18) (N.M.) (Published) The 10th finds to be ripe a challenge to a sex-offender-assessment supervised release condition and affirms the condition based on a 19-year-old sex offense. Mr Ford was sentenced to 20 years for various firearm-possession charges. Judge Parker imposed sex-offender supervised release conditions because 19 years ago when Mr. Ford was 17 he was convicted of a sex offense involving a 13-year-old girl. While the case was on appeal, Mr. Ford received a state life without parole (LWOP) sentence for killing a cell mate. On appeal, Mr. Ford challenged the conditions that he submit to a sex offender assessment and, if directed by the probation officer or treatment provider, a polygraph test. The 10th finds the assessment condition ripe for consideration, despite Mr. Ford's long federal sentence and LWOP state sentence. The 10th thinks it's simpler just to consider the issue now and it wasn't sufficiently certain Mr. Ford would never be on supervised release, given the possibility of overturning his state conviction or sentence on direct appeal or in future habeas proceedings. But the polygraph condition wasn't ripe yet because whether Mr. Ford would have to submit to the polygraph is contingent on treatment being recommended and polygraph testing being directed as part of that treatment.
The 10th finds no abuse of the district court's "broad" discretion to impose the assessment condition even though Mr. Ford has never been involved in any sex offense since he was 17. The 10th relies on: the fact that the sex offense victim was a minor; there was no record of any prior assessment or treatment; and Mr. Ford has been incarcerated almost continuously since his sex offense, "leaving him few chances to relapse."

Tax Fraud-related Convictions Affirmed

U.S. v. Ray, 2018 WL 3716080 (8/6/18) (Colo.) (published) - Mr Ray was convicted of conspiracy to defraud the US, five counts of aiding in the preparation of a false tax return, and two counts of submitting a false tax return connected with his tax prep business, Cheapertaxes LLC. The Tenth rejected his claims as follows:
(1) the government never lodged a detainer with Colorado and thus did not violate the Interstate Agreement on Detainers Act.
(2) there was no proof of facts establishing actual or presumptive prosecutorial vindictiveness leading to extra superseding indictment counts.
(3) Ray waived his speedy trial act claim by failing to raise it in his pretrial motion to dismiss and the Tenth says it would have rejected such a claim on the merits anyhow.
(4) Ray did not establish a due process violation based on the government's destruction of a letter he wrote to the IRS. He did not show either that the letter would have been exculpatory or that the government destroyed it in bad faith.
(5) the district court did not constructively amend the indictment by reading a slightly revised version to the jury; the Tenth concludes the district court actually narrowed the scope of the count at issue.

Wednesday, July 25, 2018

United States v. Chavez-Morales, 2018 WL 3233698 (10th Cir. July 3, 2018)(published): Mr. Chavez argued the district court’s sentencing procedure was unreasonable because it did not meaningfully consider his argument that economic opportunities motivated his illegal reentry and thereby mitigated the seriousness of his offense. He also said the court plainly erred by imposing a supervised release term without acknowledging or considering USSG § 5D1.1(c) which counsels a court not to impose supervised release when the accused is deportable and likely will be deported after his imprisonment term. The panel affirmed the district court’s procedure and sentence, but along the way made some helpful remarks.

First, it said to preserve a procedural reasonableness challenge based on the district court’s failure to consider and explain its reasons for rejecting an argument for lesser sentence, counsel must alert the court that its explanation was inadequate which ordinarily requires an objection after the court announces the sentence.

Second, (and please note these comments are made in a case where the court is reviewing an upward variance - the circuit has not set a rigorous standard for explanations when a sentence is within the guideline imprisonment range) if an accused raises a nonfrivolous argument that § 3553(a) factors warrant a sentence below the recommended imprisonment range, the appellate court must be able to discern from the record that the court considered whether the sentence imposed actually conforms in the circumstances to the statutory factors. This means the court must adequately explain the chosen sentence in light of the sentence requested by the accused. When the court fails to mention a ground which is recognized as a reason for giving a lower sentence it is likely to have committed an error. This does not mean that the court must accept the argument, but if it has some merit ordinarily it will deserve explicit comment. Here, because Chavez argued that economic incentives in the US motivated him to enter illegally which lessened the seriousness of his offense, “the district court needed to address the argument before imposing an above-Guidelines sentence.” The court did not err because it adequately addressed Chavez’s argument.

Third, a district court errs when it does not acknowledge or consider the guidance of a relevant guideline and its accompanying commentary. Here, the court erred because it did not acknowledge or consider USSG § 5D1.1(c)’s recommendation that ordinarily a court should not impose supervised release in reentry cases. However, since supervision can be imposed if it would provide “an added measure of deterrence”, the sentence was not reversed because the panel found “threads of a deterrence rationale” in the district court’s explanation for the term. One final comment, although the panel finds error it fails to mention that § 5D1.1's application note 5 says “added measure of deterrence and protection [of the public].” One may argue then that supervised release in a reentry case is not warranted unless the court can demonstrate that it is necessary to address both concerns.