Tuesday, July 03, 2018

Despite serious delay, defendant could not prove sufficient prejudice so no constitutional speedy trial violation

United States v. Frias, --- F.3d ---, 2018 WL 3150304 (10th Cir. June 28, 2018) -- Ms. Frias was convicted after a trial of felon in possession of a firearm. On appeal, she contended her speedy trial rights were violated, and the trial court abused its discretion in responding to a jury question and in instructing the jury on the government's burden of proof.

Speedy trial issue: Ms. Frias was wanted in connection with a murder. On October 13, 2014, she was arrested by Denver police on the warrant. She fled in her vehicle, crashed it, and then fled. After she was caught, a revolver and two purses were found in the vehicle. One purse contained bullets that fit the revolver and items belonging to Ms. Frias. She was jailed on various state charges. While in jail, on December 15, 2014, she was federally indicted on the 922(g) charge, but the indictment was sealed and Ms. Frias was not told about it. The state did its thing and she pled guilty to one count of accessory to murder on September 24, 2015. Her plea agreement provided that her state sentence would run concurrently with any potential federal sentence and the district attorney would reconsider if she received a consecutive sentence. She was sentenced to four years. On December 19, 2016, two years after the federal indictment and nine months after she was sentenced in state court, the federal government took custody of Ms. Frias and she appeared in federal court for the first time. She moved to dismiss, contending her Sixth Amendment right to a speedy trial had been violated. The district court denied the motion, and her later renewed motions, because Ms. Frias had not been prejudiced. The Tenth Circuit agreed. Three Barker v. Wingo factors weighed in favor of Ms. Frias. The delay was presumptively prejudicial. The government's reasons for the initial delay, from the time of federal indictment to the time the state proceedings concluded, was acceptable, but the 9-month delay after Ms. Frias's sentencing was not. Regarding her assertion of speedy trial rights, this factor slightly favored Ms. Frias because she did not know of the indictment, merely of the possibility of a federal charge. However, the Tenth Circuit also concluded she failed to show prejudice. She would have been incarcerated anyway, and did not demonstrate any specific harm. Finally, she did not show her defense was impaired. The passenger's testimony at trial indicated her memory was clear regarding the events on the day she was arrested, and defense counsel's examination did not bring out any particular deficits. Ms. Frias also pointed out she lost her 18-week window in which she could ask the state court to modify her sentence. The Court said that courts have not held that a federal case must proceed promptly so that a state court can potentially modify a sentence. So even though three factors favored Ms. Frias, on balance, there was no constitutional violation.

Jury question: The district court did not abuse its discretion in referring the jury to the instructions, which correctly stated the law.

Burden of proof: Ms. Frias raised the issue only to preserve it for a petition for certiorari.

Thursday, June 28, 2018

Multi-state Cooperation Creates Reasonable Suspicion for Detention at Airport

United States v. Latorre, Docket No. 17-8066 (10th Cir. June 21, 2018)(published): A law enforcement officer in Wyoming had reasonable suspicion for an investigative detention of Mr. Latorre at an airport based on the fact that Officer Weidler, an Illinois state trooper, had reasonable suspicion of criminal activity. Weidler had noticed the defendant's small plane flying without a transponder. He investigated, and learned the plane was ostensibly being flown to New York and the pilot intended to visit family. Weidler learned the plane was registered to Latorre and he had a criminal history, including drug convictions. The same plane then left New York just a day after landing there. The plane was tracked to Evanston, Wyoming, where a local officer was dispatched to the airport to stall the aircraft until a Homeland Security agent could arrive. Ultimately, Latorre gave consent to search the plane and the drugs were found. The Court held that Weidler had reasonable suspicion to investigate Latorre based on the unusual and unsafe flying behavior because of the lack of the transponder, cross-country travel and quick turn-around, and history of drug trafficking. Furthermore, the collective knowledge doctrine was a basis to impute this reasonable suspicion to Officer Mathson. Finally, Latorre's consent was freely and voluntarily given. Officer Mathson had displayed his gun to Latorre, but never touched it. Later, Latorre talked with two other agents in the public lobby. The agents wore street clothes and did not display their weapons. The conversation was calm. He was not handcuffed. The documents were on a chair. There was no evidence he was coerced.

Doctor Defendant Wins Reversal Based on Improper Amendment of the Indictment; Important Discussion of Expert Testimony

US v. Miller, --- F.3d ---, US v. Miller, No. 16-1231 (10th Cir. June 6, 2018) (published) - A must-read case if you have a battle of the doctor experts when a doctor is charged with distributing a controlled substance outside the usual course of medical treatment in violation of 21 U.S.C. § 841(a). Defendant was charged with a bunch of counts, including health care fraud, money laundering, distributing a controlled substance, and false statement. He was convicted of seven counts of distributing a controlled substance, and one count of making a false statement to the DEA. The Court upheld the district court's admission of the government's expert's testimony; rejected Miller's argument that several counts were duplicitous because they included at least two controlled substances that were prescribed on the same day to the same patient; reversed Miller's conviction on the false-statement count because the indictment was constructively amended; and found that Miller's argument that his sentence was procedurally unreasonable was moot because he had completed his sentence.

1. Battle of the Experts. The Court went over the standards for finding a doctor criminally liable under § 841(a), which is that a medical practitioner can violate the statute "if he acts without a legitimate medical purpose or outside the usual course of medical practice."

2. Duplicity. Four drug-distribution counts were not duplicitous even though they charged distribution of multiple drugs to a single patient on the same day.

3. Improper Amendment. The Court, on plain error review, reverses the defendant's conviction for making a false statement. Basically, one false statement was alleged in the indictment, evidence of that statement and another statement were presented to the jury, and the jury instructions failed to narrow the basis for the false-statement count back to the one alleged in the indictment.

Miller also challenged the conviction on the grounds that his statement was not false as a matter of law. The alleged false statement was that he answered "no" to a question on his DEA application that asked if he had "ever surrendered (for cause) or had a state professional license or controlled substance registration revoked, suspended, denied, restricted or placed on probation." One month prior to answering this question, Miller's state medical license had been suspended. Ten days prior, the state medical board had ordered the suspension "vacated." After much discussion of the meaning of the word "vacate," the Tenth Circuit agrees with the district court that, in this case at least and under Colorado law, the district court did not err in ruling that Defendant's answer on the application was false as a matter of law because his license had been suspended and the vacatur of the suspension order did not remove it from historical existence. However, Miller was free to argue, as he did at trial, that he honestly, though mistakenly, thought his answer was true based on the vacatur.

Thursday, June 07, 2018

Opinion Includes Useful Language for Limiting Government's Prior Bad Acts Evidence

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.

Government Failed to Support Sentencing Enhancement for "Straw" Gun Buyer

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.


Tuesday, June 05, 2018

Vacancy Announcements

The Federal Public Defender for the District of New Mexico has openings in the Las Cruces Branch Office for two Assistant Federal Public Defenders, one legal assistant, and one interpreter. The announcements, instructions for applying, and full descriptions are available on the office website, at http://nm.fd.org/content/employment.

Sunday, May 20, 2018

Replacement Cost An Appropriate Measure for Restitution

United States v. Howard, 887 F.3d 1072 (10th Cir. 2018) (OK): The panel addressed whether the district court correctly used the replacement cost as the restitution value and correctly determined the value of the returned property to be zero. The panel holds that depending on the factual circumstances, different measures of value may be appropriate, such as fair market value, replacement cost, foreclosure price or cost to the aggrieved. Sometimes, there may be multiple measures of value. Regardless, in every case, the ‘controlling metric’ for a restitution award is actual loss suffered. Here, the facts show that replacement cost was the correct measure of value. Although the value of the property, if returned, can offset the restitution amount, the accused has the burden of persuasion ’s with regard to any offset value. That burden can be rather exacting: because Howard did not calculate the expenses that would have been incurred to refurbish and sell the parts of the returned machine, his evidence of the general prices of refurbished parts was insufficient to meet his burden. The court did not abuse its discretion in finding the returned machine had no value to its owner.

Defendant Has Burden of Proving Inability to Pay Fine

United States v. Sanchez-Urias, 887 F.3d 1069 (10th Cir. 2018) (CO): When an accused argues that he is unable to afford a fine, it is his burden to show that he lacked the assets to pay the fine. Since Sanchez refused to provide financial information at his presentence interview and other evidence in the record showed he had some financial wherewithal, the panel finds the district court did not err in finding that Sanchez had not established his inability to pay.

Burglary Conviction Qualified as Generic Burglary, Precluding 2255 Relief

United States v. Murphy, 887 F.3d 1064 (10th Cir. 2018) (WY): Murphy filed a second 28 U.S.C. § 2255 motion to vacate his sentence in light of Johnson II. The panel holds that a second or successive § 2255 motion must satisfy two criteria before its merits can be considered: (1) a prima facie showing to the appellate court that the motion satisfies the requirements of § 2255(h), defined as “a sufficient showing of possible merit to warrant a fuller exploration by the district court,” and (2) a determination by the district court that the petition does, in fact, satisfy those requirements. Murphy’s motion did not satisfy these requirements. The district court found his prior burglary conviction met the definition of generic burglary and thus was a violent felony under the ACCA’s enumerated offense clause. The ACCA’s now defunct residual clause played no role in that decision.

Friday, May 18, 2018

Federal Bank Robbery Is Categorically a Crime of Violence, Panel Holds

United States v. McCranie, 2018 WL 205009 (10th Cir. May 3, 2018) (Colo.) Mr. McCranie’s conviction for federal bank robbery under 18 U.S.C. § 2113(a) qualified as a “crime of violence” under the career offender sentencing guideline, U.S.S.G. § 4B1.2(a)(1). The guideline states:, “[t]he term ‘crime of violence’ means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another . . . .” The relevant portion of the federal bank robbery statute requires a taking, or attempted taking, of property “by force and violence, or by intimidation.” 18 U.S.C. § 2113(a). Because “intimidation” captures the least culpable conduct supporting federal bank robbery, for that offense to categorically be a crime of violence under § 4B1.2(a)(1), bank robbery by intimidation must require the threatened use of physical force. The panel relied on cases and Tenth Circuit Pattern Jury Instruction No. 277 to conclude that “every definition of intimidation requires a purposeful act that instills objectively reasonable fear (or expectation) of force or bodily injury.” As a result, intimidation qualifies as a threatened use of physical force against the person of another and Mr. McCranie’s conviction for federal bank robbery categorically qualified as crimes of violence.

Successive 2255 Movant's Johnson Claim Rejected

United States v. Washington, 2018 WL 2208475 (May 15, 2018) (OK): The panel reviews whether the district court relied on the ACCA’s residual clause to find that Washington’s prior convictions were violent felonies. Because this was Washington’s second habeas petition, he had to establish his claim by a preponderance of the evidence. The panel found he was unable to meet that burden because (1) his Oklahoma second degree burglary conviction involving entering a building fell within Taylor’s definition of generic burglary and thus was a violent felony as defined in the enumerated offense clause; and (2) United States v. Herron, 432 F.3d 1127 (10th Cir. 2005), and United States v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010), would have supported the district court’s decision to consider his Oklahoma juvenile adjudication for pointing a weapon under the elements clause.

Panel affirms denial of motion to suppress based on pat-down search; dissent makes good points

United States v. Hammond, 2018 WL 2208523 (May 15, 2018) (CO): This decision is notable for its dissent which is detailed below. The panel was asked to decide whether police officers, who frisked Hammond for weapons, had reasonable suspicion to believe that he was armed and dangerous. It holds it is reasonable for officers to “perform a brief, non-invasive search to ensure their own safety and that of the surrounding community” when the person searched is a (1) known gang member (2) who was a suspect in a prior weapons possession case and who had (3) recently been arrested in connection with another weapons case, is pulled over (4) while riding in a car that had previously been seized in connection with the individual’s prior arrest, (5) while wearing colors which loudly display his affiliation with a gang involved in an ongoing feud. The panel noted that a criminal record, let alone arrests or suspected gang affiliation, is not sufficient to create reasonable suspicion of anything. The circumstances of the stop “must interact” with these other factors before they become “critically relevant” to the Terry-stop analysis.

Judge Phillips dissented. He said before approving a pat down search, the court must be sure there is “objective” reasonable suspicion that the accused is armed and dangerous. He agreed there was objective reasonable suspicion that Hammond was armed but that suspicion was lacking as to his dangerousness. He pointed out that “danger is specific to the moment before the police pat down a person.” He also listed four facts that weighed against finding Hammond dangerous: (1) he was a passenger in a car stopped for a burned-out taillight; (2) the police did not treat the female driver as a threat to their safety; (3) Hammond was courteous, calm and compliant, not angry intoxicated or in any other “worrisome state” and (4) he voluntarily stood outside the car in a well-lit busy intersection, surrounded by commercial buildings, with the police department on the corner. Judge Phillips criticizes the majority for “collapsing armed and dangerous into one condition.” He predicts the government will use this opinion to “stress” that the court allowed a frisk “under all of the surrounding circumstances, not just those bearing on whether Hammond was armed.”

Friday, May 04, 2018

Child Porn Defendant's 10-year Sentence Based on Prior Georgia Misdemeanor Sexual Battery Offense Affirmed

United States v. Hebert, 2018 WL 1915851 (April 24, 2018) (WY, published): An accused convicted of a child pornography offense under 18 U.S.C. § 2252A can face a mandatory minimum 10 year prison term if he has a prior state conviction ‘relating to’ aggravated sexual abuse, sexual abuse or abusive sexual conduct involving a minor or ward. Using the categorical approach, the panel rules that Georgia’s sexual battery offense 'relates to' sexual abuse as those elements are defined in 18 U.S.C. § 2242. The panel admits the Georgia statute includes some conduct that might not come within the federal definition, but it need only decide whether the sexual battery statute 'relates to' sexual abuse, not whether it 'constitutes' sexual abuse. Herbert’s 10 year minimum mandatory sentence is affirmed because his misdemeanor convictions for sexual battery triggered the enhanced sentence.

Statute Prohibiting "Transporting" of Illicit Drugs Qualifies as "Serious Drug Felony" for ACCA Purposes

US v. Johnson, 2018 WL 2058181, Docket No. 17-6228 (10th Cir. May 2, 2018): Mr. Johnson's sentencing enhancement under the Armed Career Criminal Act (ACCA) is affirmed. The Court holds that an Oklahoma statute that prohibits transportation of illicit drugs with the intent to distribute them, Okla. Stat. tit. 63, § 2-401(A)(1), qualifies as a "serious drug offense" as defined for ACCA. See 18 U.S.C. § 924(e)(2)9A)(ii). The Court acknowledges that the federal definition of "serious drug offense" does not include "transportation," but it does include "possessing" and "the transportation of drugs necessarily implies their possession." The Court also rejects Mr. Johnson's argument that his two prior drug convictions occurred on the same occasion. One conviction occurred because Mr. Johnson sold 3 grams of crack cocaine to an undercover investigator at 4:20 p.m. one afternoon. The next day, at 7:15 p.m., officers found 13 grams of cocaine base in Mr. Johnson's car. The Court rejects Mr. Johnson's argument that the two incidents involved the "continuation of a single drug deal, negotiated at the same time, between the same parties." The Court noted the crimes were related, but said they were nonetheless distinct because they were committed at "distinct, different times" and Mr. Johnson had "a meaningful opportunity to stop" after the first sale.