Monday, June 22, 2015

District Court Abused Its Discretion When It Rejected Plea Agreement Because It Contained Appeal Waiver

US v. Vanderwerff, No. 13-1227 (10th Cir. 2015): District court abused its discretion in rejecting defendant's first plea agreement because it included an appeal waiver. Defendant was charged with child pornography offenses. His first plea agreement limited defendant's sentencing exposure to 5-10 years. It included an appeal waiver and the other usual waivers. The district court rejected the plea agreement because it included the appeal waiver, reasoning appeal waivers should be included only when justified by the circumstances and facts of the particular case, and such circumstances were not present here. Subsequently, the parties negotiated a new agreement, that did not include the appellate waiver and that was otherwise worse for the defendant, especially in that his sentencing exposure was now five to 20 years. He ended up with a sentence of 108 months. On appeal, the parties and court-appointed amicus counsel all agreed the district court abused its discretion. The Tenth agreed. The district court misread Laffler and Booker when it concluded those cases to justify rejection of the appellate waiver. 18 USC 3553 is also inapplicable; it applies to imposition of sentence and not to the entry of guilty plea. The district court failed to properly defer to the government's prosecutorial discretion in fashioning plea agreements. And the Tenth reminded everyone that it and the Supreme Court likes and approves of plea bargaining and appellate waivers. No one asked for harmless error analysis, so the Tenth did not go there. The Court vacated the judgment and remanded to allow the defendant to withdraw his guilty plea, and (presumably) get back his original plea offer (thought the Court did not specifically order that result).

Condition Restricting Computer Use Upheld

U.S. v. Ullmann, 2015 WL 3559221 (6/9/2015) (KS)(Published): The panel approves a district court’s supervised release condition that imposes “restrictions and/or prohibitions to: computer and Internet use.” Ullman was convicted of making a false statement in violation of 18 U.S.C. § 1001. The charge arose from sexually explicit written conversations between Ullmann and an undercover FBI agent posing online as a thirteen-year-old minor. The panel said that normally this language standing alone would impermissibly impose a greater deprivation of liberty than reasonably necessary because it suggests the Probation Office may completely ban a means of communication that has become a necessary component of modern life. However, the district court limited the condition at issue in an oral pronouncement, clarifying that it was restricting, not prohibiting, Ullmann’s use of the Internet and Internet-capable devices. The oral pronouncement trumps the written order and saves the condition. Besides, remarks the panel, the district court said it was retaining its decision making authority and merely asking that probation carry out its directives. The panel added that it discourages future appeals challenging the “restrictions and/or prohibitions” language. Such appeals would not be “a valuable use of our limited judicial resources.”

Position Announcement - Investigator, Albuquerque FPD Office

The office of the Federal Public Defender is now accepting applications for the position of Investigator. One position is available with a salary range of JSP 11-14, $58,562 - $128,223. The closing date is July 17, 2015.

Position Description:
An Investigator must be able to perform duties and responsibilities, such as: conducting interviews to corroborate reports and facts already contained or presented in records, discovery material, or various other formats; locating facts witnesses and experts; conducting open ended interviews with witnesses and other sources of information to explore and develop new facts and information; initiating new areas of investigation after being assigned the case and discussing it with the attorney; gathering records; locating, viewing, and retrieving tangible evidence, personal property, and other relevant items; photographing crime scenes and evidence; maintaining filing and information reference systems; writing comprehensive descriptive reports of work done; and testifying effectively in federal court proceedings. An Investigator must have the ability and willingness to accept responsibility, and to use initiative, ingenuity and resourcefulness. Knowledge of computer applications is required. Working knowledge of the criminal justice system is required. Regular, out-of-town, overnight travel throughout the State of New Mexico is required. An Investigator also must perform all other duties as assigned.

Qualifications: Applicants must have a high school degree or equivalent and the requisite experience. Qualified applicants must possess a minimum of six years (three years general plus three years specialized) investigative experience. Education above the high school level in accredited institutions may be substituted for general experience. The selected candidate will be subject to a background check as a condition of employment.

Spanish proficience preferred. Applicants may be given a Spanish proficiency test.

Position subject to availability of funding.

Applicants interested in the position, please e-mail your resume and three references to:

Stephen P. McCue, Federal Public Defender

No phone calls please.

*The Federal Public Defender is an Equal Opportunity Employer*

Monday, June 15, 2015

eVouchers on the Horizon

The Tenth Circuit today announced:

In July 2015 (exact date to be determined), the U.S. Court of Appeals for the Tenth Circuit will transition from our current, paper based system for processing Criminal Justice Act ("CJA") vouchers to eVoucher, a nationally supported, web based application for managing CJA appointments and processing CJA vouchers.

The implementation of eVoucher will obviate the need for CJA counsel in Tenth Circuit appeals to submit the paper vouchers, documentation, and the related Microsoft Excel workbook that are currently required. Instead, counsel will enter their time and expenses, and submit their vouchers and supporting documentation, via eVoucher, which will route the vouchers to the court for review, approval and payment. Later this summer, eVoucher will be integrated with the federal judiciary's CJA payment system, which will allow payment to occur via electronic funds transfer, thereby decreasing the amount of time between approval of a voucher and counsel's receipt of the resulting payment.

At the time that eVoucher is implemented, all pending CJA appointments in Tenth Circuit appeals will be entered into eVoucher by Clerk's Office staff, and all vouchers must be submitted by counsel via eVoucher. To be clear, the implementation at issue in this email affects only appellate CJA appointments and appellate CJA vouchers for Tenth Circuit appeals; implementation of eVoucher in the U.S. District Courts within the Tenth Circuit will be coordinated by the individual district courts.

In the coming weeks, you will receive additional emails regarding the exact date for implementation of eVoucher; your eVoucher account information; and eVoucher reference materials and training opportunities. If you are interested in learning more about eVoucher right now, some introductory materials have been posted to the Tenth Circuit website:

Please do not hesitate to contact me with any questions or concerns. Thank you in advance for your patience and cooperation as we work towards a smooth implementation that will improve the affected processes for everyone involved.

Chris Wolpert
Chief Deputy Clerk
U.S. Court of Appeals for the Tenth Circuit
1823 Stout Street
Denver, CO 80257
Tel: (303) 335-3077

Tuesday, June 09, 2015

Restitution reversed, but loss calculation affirmed

U.S. v. Alisuretove, 2015 WL 3541213 (6/8/15)(Published) - The Tenth Circuit panel reverses the district court's restitution order under the Mandatory Victims Restitution Act. Mr. Alisuretove pled guilty to a conspiracy offense which the indictment limited to five financial institutions. In calculating restitution, however, the presentence report and the district court treated the offense as an unlimited wire fraud conspiracy. No supporting factual findings were made and the record did not show whether additional financial institutions were directly and proximately harmed by the wire fraud committed on the five financial institutions listed in the indictment. Further, the record did not show whether losses on which restitution was ordered were incurred as a result of criminal acts committed within the time frame of the charged conspiracy. Consequently, the Tenth remands for resentencing with respect to restitution.

The district court's calculation under U.S.S.G. § 2B1.1(b)(1) of the amount of loss associated with Mr. Alisuretove's conspiracy conviction--including loss resulting from co-conspirators' placement of skimming devices on convenience store gas pumps to obtain debit card info--is affirmed. The Guidelines provide that a defendant involved in a joint criminal undertaking may be held responsible for relevant conduct that includes all reasonably foreseeable acts of his co-conspirators to further the conspiracy. And by pleading guilty to conspiracy, Mr. Alisuretove admitted to all material facts alleged in the charge.

Tuesday, June 02, 2015

Position Announcement-AFPD, Las Cruces, NM

The Federal Public Defender for the District of New Mexico is seeking a full time, experienced trial attorney for the branch office in Las Cruces. Federal salary and benefits apply.

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

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

Please submit a statement of interest and detailed resume of experience, including trial and appellate work, with three references to:

Stephen P. McCue
Federal Public Defender
111 Lomas Blvd. NW, Suite 501
Albuquerque, NM 87102

Writing samples will be required only from those selected for interview

Applications must be postmarked by July 10, 2015. Position will remain open until filled and is subject to availability of funding.

Unpublished Decisions

U.S. v. Jackett, 2015 WL 2263700 (5/15/15) (Wyo.) (unpb'd) - A good categorical-approach, controlled-substance offense case. The 10th holds that § 4B1.2(b)'s definition of "controlled substance offense" includes possession of a non-controlled substance only if the intent of the possession is to manufacture a controlled substance. So, Mr. Jackett's conviction for 21 U.S.C. § 843(a)(6) did not necessarily constitute a controlled substance offense because the offense could be committed just by knowing or having reasonable cause to believe the substance would be used to manufacture a controlled substance. The district court erred by not applying the modified categorical approach to determine whether the jury in Mr. Jackett's prior case necessarily found he had the requisite intent.

U.S. v. Gutierrez-Carranza, 2015 WL 2239212 (5/14/15) (Okl) (unpub'd) - Imposing a supervised release term on an alien reentry defendant was substantively reasonable, despite the guidelines' preference for no such thing, § 5D1.1(c). The guideline, § 5D1.1, n. 5, says supervised release might be appropriate if it adds a measure of deterrence and protection based on the circumstances of a particular case. Here deterrence and public protection are served where .Mr. Gutierrez-Carranza's wife and children live in the U.S., he defied a prior deportation order and he had a violent criminal history.

U.S. v. George Allen, 2015 WL 2263690 (5/15/15) (N.M.) (unpub'd) - The 10th holds a supervised release condition precluding possession of sexually explicit material involving adults is reasonably related to Mr. Allen's child pornography affinity and no greater deprivation of liberty than reasonably necessary for § 3553(a) purposes. The 10th stresses how attracted to child porn Mr. Allen is.

U.S. v. Brian Allen, 2015 WL 2263701 (5/15/15) (Wyo.) (unpub'd) - Mr. Allen's gang affiliation was admissible to provide relevant context, the 10th says. It explained why Mr. Allen wanted to kidnap the victim and possessed a gun to accomplish it - the victim had claimed to be part of Mr. Allen's gang, which I guess was a bad thing to do - and why Mr. Allen's buddy would help him kidnap the victim - the friend was a member of Mr. Allen's gang. The gang evidence was "an integral and natural part" of the witnesses' accounts to establish Mr. Allen, a felon, possessed a firearm. No 403 problem here because the evidence was probative and restricting the evidence and providing a limiting instruction reduced the prejudice.

Helfferich v. Marcantel, 2015 WL 2239083 (5/14/15) (N.M.) (unpub'd) - No liability where Mr. Heifferich alleged officers transported him from one state facility to another for 9 hours in a hot, poorly-ventilated transport vehicle with 11 other inmates without a restroom break while the vehicle was driven carelessly. The allegations did not rise to the level of unnecessary and wanton infliction of pain necessary to implicate the 8th Amendment.

Tenth Takes Broad View of Permissible Questioning During Routine Traffic Stop

U.S. v. Pettit, 2015 WL 2217115 (5/13/15) (Ut.) (Published) - A bad, post-Rodriguez traffic stop case. The 10th says without qualification that an officer may inquire about a driver's travel plans and matters unrelated to the stop. Hopefully, subsequent 10th Circuit panels and district courts don't take this literally. Other 10th cases, including the ones the 10th cites, limit these questions somewhat. "Unrelated" questions are okay only when the officer is waiting for some response or while otherwise conducting some stop-related activity like writing up the citation, i.e., not extending the duration of the stop with the questions. The 10th also says "generally" an officer may request consent to search luggage.

Nonetheless, the 10th does acknowledge Rodriguez says the stop may not be extended beyond the time reasonably required to effectuate the stop's purpose. When the officer finished the traffic citation and returned to Mr. Pettit's car, the stop's initial purpose was satisfied. From that point on, the officer needed reasonable suspicion to continue the detention, which the officer continued by retaining Mr. Pettit's documents.

No problem. There was reasonable suspicion because: (1) there were specific indicia that Mr. Pettit's nervousness was extreme; his lower body was moving nervously, his whole arm shook when he handed over the license; and most importantly Mr. Pettit said twice within the first 25 seconds of the stop that the officer made him nervous. The 10th dismissed the notion, mentioned in other 10th Circuit cases that it would be hard for an officer to know if a person was extra nervous when the officer had no previous acquaintance with the defendant; such a theory would eliminate nervousness as a factor, it didn't matter that Mr. Pettit could have been shaken by a "snow burst" he and the officer had just gone through, innocent explanations are essentially beside the point; (2) Mr. Pettit was driving a car that was not his, which can indicate drug trafficking, and had unusual, though perhaps not implausible, travel plans, i.e., he flew to California from Kansas and was driving a friend's car back to Kansas, which was consistent with the travel plans of a drug courier, while the plans were not enough for reasonable suspicion by themselves, they were worthy of consideration; and, perhaps most importantly, (3) Mr. Pettit had two suspended licenses, which "are usually suspended for less than law abiding conduct" and which made it less likely he would have volunteered to help a friend transport a car across the country alone rather, he would drive across country only if he were well compensated for carrying drugs; and the trooper had to ask for Mr. Pettit's license twice and Mr. Pettit passed over one license and produced one labeled "nondriver." Mr. Pettit questioned why the suspended licenses would be such a big deal when the 10th has cautioned about using prior criminal convictions; but the 10th was unperturbed, noting it was considering the license factor in combination with the other factors. While factors weighing against reasonable suspicion must be considered, the 10th says, the officer's failure to find any contraband when he searched Mr. Pettit's luggage for a minute was entitled to "little weight." In totality: reasonable suspicion.

Tenth Deems Extra Language in Indictment to be "Mere Surplusage," and Court's Failure to Instruct on it was not Error

U.S. v. Mann, 2015 WL 2342861 (5/18/15)(Published) - The Tenth rejects the argument that the district court committed plain error by constructively amending the indictment on an 18 USC § 924(c) count. The government agreed there was plain error but contested the third (substantial prejudice) and fourth prongs (seriously affected the fairness, integrity or reputation of judicial proceedings) of the plain error standard. The Tenth finds there was no constructive amendment and, therefore, no error at all. The indictment charged Mr. Mann "did knowingly discharge and carry a firearm . . . during and in relation to" a specified assault resulting in serious bodily injury. The jury was instructed that Mr. Mann was guilty if he "used or carried a firearm during and in relation to" the assault, omitting the element of "discharge." At trial, Mr. Mann did not contest the fact that he had discharged the weapon. He did argue, however that he did so mistakenly. In light of evidence that Mr. Mann mistakenly shot the assault victim, the jury found him not guilty on the charge of assault with intent to do bodily injury with respect to the victim. The defense argued on appeal that the district court constructively amended the indictment by failing to instruct the jury that it needed to find Mr. Mann "knowingly" discharged his firearm "in relation to" the charged assault. The Tenth concludes there was no error because the indictment would have been adequate under Alleyne, which requires the jury to find "discharge" of the weapon, if it had omitted the "knowingly" and "during and in relation to" language, stating: "[T]he charged but uninstructed language was mere surplusage to the true elements of the crime."

Position Announcement -- Assistant Federal Public Defender, Las Cruces, NM

The Federal Public Defender for the District of New Mexico is seeking a full time, experienced trial attorney for the branch office in Las Cruces. Federal salary and benefits apply.

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

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

Please submit a statement of interest and detailed resume of experience, including trial and appellate work, with three references to:

Stephen P. McCue
Federal Public Defender
111 Lomas Blvd. NW, Suite 501
Albuquerque, NM 87102

Writing samples will be required only from those selected for interview

Applications must be postmarked by July 10, 2015. Position will remain open until filled and is subject to availability of funding.

Tuesday, May 12, 2015

100-year Sentence for Non-production Child Porn Offenses Affirmed

U.S. v. Franklin, -- F.3d --, 2015 WL 2167567 (5/11/15)(published) - Consecutive sentences totaling 100 years for five child porn offenses, including advertising, receipt, distribution, and possession -- all non-production offenses -- affirmed by the 10th Circuit. Mr. Franklin had no criminal history. The Tenth holds there was sufficient evidence to support his conviction of advertisement or notice of child porn, based on provision of images to "friends" through a website called "GigaTribe." "Advertisement" and "notice" are everyday words to be interpreted by their dictionary definitions and a rational fact-finder could conclude Mr. Franklin's child porn postings constituted advertisements or notices under 18 U.S.C. § 2251(d)(1)(A). The 100-year sentence was substantively reasonable. Mr. Franklin pointed to disparities between his sentence and those in sixteen similar cases. However, no such evidence was provided to the district court and the cases cited by Mr. Franklin on appeal lacked info about the defendants' offense levels, criminal histories, and the specific offense circumstances. Consequently, the Tenth could not determine how similar the cited cases were to his case or whether the sentencing disparities were warranted. The court rejects, under a plain error standard, the argument that the facts underlying the sentencing enhancements should have been submitted to the jury and not found by the district court. Mr. Franklin's offense level was enhanced by fifteen levels based on court-found facts concerning distribution of child porn for something of value, pattern or activity of sexual abuse or exploitation of a minor, and depiction of at least 600 child porn images.

Friday, May 08, 2015

Frequent Filer Warned

Kenney v. State of Oklahoma, Docket No. 15-6021 (10th Cir. May 5, 2015) (unpublished): On his 20+ appeal, the Tenth warns Mr. Kenney that if he files any more frivolous, malicious, or abusive appeals, he may be sanctioned and possibly restricted from further filings in the Court. Mr. Kenney has previously been restricted from filing in the Northern District of Oklahoma because he filed "a drove of frivolous lawsuits," and he was trying to circumvent the restrictions by filing in the Western District. I guess he'll have to move to another circuit now, not just across the state.

What Not To Do In a Brief

Nixon v. City and County of Denver, 2015 WL 1935251 (4/30/15) (Col.) (Published) - The 10th apparently wants to make a point to brief writers by publishing this otherwise nondescript case. The 10th excoriates Mr. Nixon's counsel, whose name is not listed, unlike what is usually done in published cases, for not explaining why the district court's decision was wrong. The 10th goes through in detail Mr. Nixon's opening brief and observes how Mr. Nixon addressed a number of issues that were either irrelevant or not contested, while not discussing why he lost the case below. The 10th also expresses unhappiness with the general nature of what might be construed as Mr. Nixon's challenge to one aspect of the district court's opinion. That challenge is accordingly waived. The 10th, ever so briefly, addresses an issue it divines Mr. Nixon may have made in one sentence under an inapposite headnote.

Tenth Agrees that District Court Committed Plain, Procedural Error at Sentencing

U.S. v. Sicairos, 2015 WL 1948434 (5/1/15) (Col.) (unpub'd) - A defense victory acquiesced in by the government. The district court varied down two offense levels from a guideline range of 151 to 188 months, did not recalculate the new range and then, without explanation, sentenced Mr. Sicairos to 188 months, the bottom of the original guideline range. This constituted procedural error warranting reversal under plain error review, the 10th decides. The 10th does not explain why this is so, but Mr. Sicairos is not complaining. On the other hand, in a footnote, the 10th unhelpfully notes that at the sentencing hearing held before November 1, 2015, the parties thought the impending reduction of offense levels for meth would result in a two-level decrease for Mr. Sicairos. But the 10th points out the 11.59 kilograms of ice would still lead to the same offense level as before the amendments took effect.

Tuesday, May 05, 2015

Supervised Release Condition of Six Months in Halfway House Affirmed

U.S. v. Woolsey, 2015 WL 1518073 (4/6/15) (Wyo.) (unpub'd) - The 10th says:"'in affirming, we pause to applaud the district judge's refusal to tolerate persistent manipulation, deceit, and criminal behavior." The 10th affirms a supervised release condition of six months in a halfway house. The 10th says such a condition does not rise to the level of a deprivation of fundamental liberty interests. So the district court didn't need as terrific a justification as it would in other circumstances, such as when familial associations are affected. The halfway house was a way to limit Mr. Woolsey's access to drugs and prevent him leaving the jurisdiction, as well as to provide him a place to live that he might not have had otherwise. The 10th concluded similar to the manner in which it began: "The sentence imposed amounted to nothing more than a condign ["much-deserved," I had to look it up] consequence for an established pattern of intransigent, oppositional behavior."

Obstruction Enhancement Upheld Based on Refusal to Give Voice Exemplar

U.S. v. Mays, 2015 WL 1544725 (4/8/15) (Kan.) (unpub'd) - The 10th upholds an obstruction-of-justice enhancement due to Mr. Mays' refusal to provide a voice exemplar. It didn't matter that he did not successfully obstruct his prosecution. He tried to.

Defendant's Waiver of Counsel Post-Plea Was Knowing, Voluntary

U.S. v. Vigil, 2015 WL 1515477 (4/6/15) (Wyo.) (unpub'd) - The 10th finds Mr. Vigil knowingly and voluntarily waived his right to counsel where the district court gave him a choice: either continue with current counsel or file the guilty-plea-withdrawal motion counsel refuses to file and continue pro se. The 10th holds that a less extensive on-the-record advisement may suffice for waivers occurring after trial than for those waivers happening before trial. The 10th treats the plea withdrawal stage as a post-trial stage. At that stage, the court didn't have to advise about the grounds needed to obtain a guilty-plea withdrawal or possible defenses or mitigating circumstances. Just the "basic facts" regarding the usefulness of counsel and the hazards of self-representation are all the defendant needs to know. Since granting the withdrawal motion was highly unlikely, the court didn't have to advise Mr. Vigil about matters relevant to trial. With these principles in mind, the court adequately advised Mr. Vigil and, besides, he had standby counsel to answer any questions he might have. Mr. Vigil did not have to be put under oath for the counsel waiver to be valid because the oath isn't even required for plea proceedings.

Giglio Doesn't Apply to Evidence Impeaching Non-critical Witness

U.S. v. Thompson, 2015 WL 1544788 (4/8/15) (Okl.) (unpub'd) - Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972),does not apply to information that only impeaches a non-critical witness, says the 10th. In this case, suppression of evidence that a government witness lied to his supervisor was not a violation of Giglio. Other witnesses testified to what the witness testified to. One witness testified to similar facts regarding the arrest and another testified about similar facts regarding the warrant preparation process and the search of the vehicle.

Capital Petitioner Denied Relief

Williams v. Trammell, 2015 WL 1600424 (4/10/15) (Okl.) (Published) - Oklahoma death sentence affirmed. The 10th holds it was reasonable to conclude there was sufficient evidence that under Oklahoma law Mr. Williams committed malice aforethought murder under the aiding and abetting theory, i.e., that he had the intent to kill and he knew his colleague in the armed robbery also had the intent to kill. Oddly, the Oklahoma Criminal Court of Appeals ("OCCA") overruled prior precedent requiring those elements. But it decided in the alternative that there was sufficient evidence of the previously required elements. So there was no due process, retroactivity problem with affirming a conviction based on previously undisclosed elements. The 10th found troubling the OCCA's new aiding and abetting definition that seemed to eliminate the need for mens rea. When addressing the old elements, Oklahoma decided it didn't matter whether Mr. Williams was the one who shot the person that died or that he intended for that particular person to be killed. It only mattered that Mr. Williams intended to kill someone during the robbery and he knew his cohort intended to kill someone. The 10th was cool with this. There was fair warning that the OCCA might make such a decision. It was not unexpected because up until Mr. Williams' appeal it was not clear one way or the other. There was sufficient evidence that Mr. Williams and his cohort jointly planned to rob the bank and to kill whoever stood in their way. That was enough for a conviction. It was unlikely Mr. Williams was ignorant of his cohort's intent to kill, given Mr. Williams' obvious intent to do so. The result of the OCCA's decision was reasonable, the 10th holds, even though its reasoning "was not altogether clear, accurate or comprehensive." It was good enough for the Antiterrorism and Effective Death Penalty Act (AEDPA).

With respect to the ineffective-assistance-of-counsel claims, the OCCA's decision was not a "model of clarity." But that's okay under AEDPA. Deference was owed to the OCCA's broad statement that Mr. Williams' claims "did not rise to the level of ineffective assistance of counsel under the Strickland standard." The 10th couldn't tell under which prong the OCCA decided the question. But deference was still owed. Mr. Williams' lawyer had said in an e-mail he "pops valium like candy just to face the day." But this did not mean Mr. Williams was completely deprived of counsel. The 10th had to look at each alleged act of deficiency and decide if it met the two prongs of Strickland. There was no need for an evidentiary hearing to determine why Mr. Williams' lawyer did what he did at trial. Under the performance prong, objective reasonableness is the standard. The lawyer's subjective reasoning doesn't matter. The OCCA could reasonably conclude counsel was not deficient for failing to object to evidence of Mr. Williams' possession of a stolen watch. That evidence was insignificant compared to the evidence of other prior crimes Mr. Williams had committed. Plus counsel used Mr. Williams' general thievery to explain why he had a wad of cash the day of the robbery. Counsel could have also thought if he objected to the watch testimony it might bring attention to it and the jury might think Mr. Williams had something to hide. Of course, this "logic" would preclude counsel from objecting to anything. It was reasonable for counsel not to object to unflattering photos of an apartment, post-autopsy photos of the victim and detailed testimony by the physician of the treatment of the deceased. They were probative of identifying Mr. Williams as the robber, of his intent to kill and the risk of death to others, respectively. Counsel's failure to object to speculative lay testimony about the cause of injuries to Mr. Williams and testimony about a witness's recanted report of Mr. Williams' admissions were not sufficiently prejudicial and were maybe even helpful to the defense. It was reasonable for counsel not to be ready to cross-examine about a prior inconsistent statement because there was only a remote possibility the witness would change his version of events. So defense counsel should feel no need to carry to the courtroom all those pesky and burdensome prior statements. The 10th refused to address counsel's failure to object to prosecutorial misconduct because Mr. Williams was not specific enough about what conduct by the prosecutor he found to be problematic.

On the penalty phase front, the 10th found Mr. Williams was raising a different complaint than what he raised in state court. He now contended trial counsel should have prepared the testimony of a particular defense expert witness better. In state court he alleged counsel should have called other witnesses. The 10th holds that this amounts to an incurable procedural default. Mr. Williams could not now go back to state court and raise the issue because of Oklahoma's successive petition bar. While Oklahoma does make exceptions to that bar for certain issues, the 10th decided the chance of the state courts making an exception for Mr. Williams' particular issue, which the 10th thought was not very compelling, was so slim it wasn't worth giving Mr. Williams an opportunity to try and raise it now.. It was not necessary for the 10th to be 100% accurate about its prediction about what the the courts would do. Trial counsel's failure to call other witnesses was not prejudicial enough because, with one exception, they would not have testified to anything different than did the two witnesses trial counsel had called: an expert and Mr. Williams' mother. The 10th says the only new testimony would have been from Mr. Williams' uncles who would have testified to how horrible it is to be in prison and how prison can reform someone. The 10th thought such testimony didn't present anything particularly novel and was more likely to be harmful because it would remind jurors that Mr. Williams' closest family members are convicted felons. All of these decisions regarding Mr. Williams' counsel claims were made without any court, state or federal, holding an evidentiary hearing.

Judge Gorsuch concurred. He thought the OCCA's discussion of the elements of aiding and abetting murder suggested strict liability might trigger the death penalty in the future. The judge felt this suggested just selling a gun to someone who later used the gun in a murder might warrant the death penalty under the OCCA's formulation. If this is what the OCCA really meant, the judge says, then it would be contravening Supreme Court law. The judge then extolls the virtues of requiring mens rea. He concurs with the majority because it seems as though the OCCA did issue an alternative holding under a conception of aiding and abetting liability that included a sufficient men rea element.

Emergency Road Block To Locate Bank Robber Did Not Violate 4th Amendment

U.S. v. Paetsch, 2015 WL 1543090 (4/8/15) (Col.) (Published) - The 10th affirms a denial of a motion to suppress in an emergency roadblock situation. A well-disguised man brandishing a gun robbed a bank in Aurora, Colorado. Amidst the cash he took was a tracker that transmitted a silent signal to the police. The tracker could be located within a 60-foot diameter. 14 minutes after the robbery, the tracker indicated the car carrying the tracker was stopped at a red light. Officers prevented the 20 vehicles containing 29 people that were stopped at the light from going anywhere. The tracker could not tell the officers which of the 20 cars had the tracker. The lead officer tried to get a homing beacon to the intersection that could pinpoint the tracker to within a 10-foot diameter. Various mishaps [officer forgot his keys to the office containing the beacon, his siren broke] caused the beacon to arrive 54 minutes after the stop. In the meantime, 29 minutes after the stop, officers pulled Mr. Patesch out of his car and onto the ground with weapons drawn, handcuffed him and sat him on the curb because he was acting "suspiciously." He shifted in his seat, repeatedly looked around and didn't keep his hands outside the car as ordered. Once the beacon arrived, it turned out the officer who brought it couldn't figure out how to use it, although it did evidence a weak signal coming from Mr. Paetsch's car. Using weapons and ballistic shields, the officers ordered all the remaining occupants to leave their cars. The officers handcuffed all those who did not have kids with them. One hour and 24 minutes after the stop, officers did a secondary search and found in Mr. Paetsch's car a bank money wrapper. Soon after, a person who knew how to use the beacon got a strong signal from Mr. Paetsch's car. They found a bunch of incriminating stuff in that car. Nonetheless, officers kept the other motorists at the intersection for another half hour until 2 hours and 18 minutes after the stop.

First, the 10th found the initial barricade to be reasonable. There was no need for individualized suspicion in these circumstances. (1) The public concern was grave. An armed robber was fleeing, representing a substantial public threat. (2) The seizure advanced the public interest well enough. There was a 5 % chance one of the cars contained the robber. This compared favorably to approved roadblocks that only captured 1.6 % or less of drivers who needed to be arrested. Plus, the officers knew for sure the barricade would be effective because the robber was one of the people stopped there. A roadblock does not have to be minimally intrusive, says the 10th, nor do officers have to use the least intrusive method. The greater the danger, the more latitude officers have. (3) The severity of the interference with individual liberty wasn't so bad: 29 people detained for 29 minutes before individualized suspicion was developed. Plus, the people were in cars, which are entitled to less protection than homes. And the officers acted with diligence, albeit incompetently. The 10th refused to consider the intrusion on the innocent motorists after Mr. Paetsch was singled out. There was enough individualized justification to remove Mr. Paetsch from his car 29 minutes after the stop. The 10th refused to include in its analysis the unexpected problems that arose getting the beacon to the scene together with a competent person. There was no evidence the lead officer should have known the delays would occur when he ordered the barricade. He expected the beacon to arrive within 30 minutes, during which time individualized suspicion of Mr. Paetsch arose.

Second, as for the detention of Mr. Paetsch after he was removed from his car, his detention was not unreasonably long. They could detain him for the actual time it took to get the beacon to locate the tracker, an hour and a half after the initial stop.

Chief Judge Briscoe concurred in the result. She did not think the officers had reasonable suspicion Mr. Paetsch was the robber when they removed him from the car. She pointed to the fact that the officers told Mr. Paetsch he was not a suspect as they handcuffed him and sat him on the curb. But, Judge Brisoce says, even if the length of his detention violated Mr. Paetsch's 4th Amendment rights, the exclusionary rule should not apply. More expansion of the good faith exception!!! The officers acted in good faith. The delay was the result of negligence, not deliberate, reckless or grossly negligent conduct, she opines.

Tenth Reverses District Court's Order Granting Suppression

U.S. v. Herrera, 2015 WL 1516267 (4/6/15) (Col.) (Published) - The 10th reverses a suppression grant based on Franks. On the bright side, the 10th holds the district court did not abuse its discretion when it held an evidentiary hearing, even though Mr. Herrera had not made a sufficient showing to require such a hearing. The 10th says: "lots of things in the law, as in life, aren't mandatory but still permissible." District courts enjoy a "fair amount of discretion in choosing the procedures in resolving pretrial motions," the 10th asserts, "in a democratic legal order built on the promise of due process and the vindication of individual rights." From this lofty perch, the opinion goes downhill for Mr. Herrera.

The district court made two errors. First, it clearly erred when it found the search warrant affidavit recklessly created the false impression that the confidential informant(CI) knew that Mr. Herrera used his Ford Escape for drug smuggling as far back as 2009. The 10th did not find anything in the affidavit that indicated that knowledge. Rather, the affidavit showed the CI knew later, when the warrant was applied for, that Mr. Herrera owned an Escape and used it for his drug resupply runs. Second, in deciding whether the affidavit established probable cause without the untrue statement, the district court mistakenly struck virtually everything the CI said. The 10th saw no good reason for the court to disbelieve whatever the CI claimed, especially since much of what the CI said was corroborated. No suppression because there was plenty of probable cause based on the CI's statements and the corroboration thereof.

Categorical Approach Applies to Determining SORNA Tier Except for Victim Age; Remand Necessary to Address Restrictive SR Conditions

U.S. v. White, 2015 WL 1516385 (4/6/15) (Okl.) (Published) - The 10th holds determining what tier level a SORNA defendant is in depends on the categorical approach except when it comes to the age of the victim. In defining Tier III and Tier II offenses in 42 U.S.C. § 16911(3) & (4), Congress requires a comparison to offenses as described in particular statutes. This indicates Congress wanted courts to review the elements of the offenses, not what the defendant's specific acts were. On the other hand, the reference in the definitions to the age of the victim, and the purpose evidenced in the legislative history to punish child sex offenders more severely, indicates the court must consider the specific circumstances to determine the victim's age. In this case, Mr. White was previously convicted in North Carolina of taking indecent liberties with a child under sixteen. Under the relevant statute, neither a sexual act nor an offensive touching was required, e.g. a graphic letter would be sufficient. All the relevant federal statutes referred to in the tier II and III definitions require a sexual act or offensive touching. Mr. White is therefore a tier I offender. The district court erred when it considered his actual conduct in assigning him to tier III. That error resulted in a higher guideline range than was appropriate.

The 10th also required a remand to address the special supervised-release conditions that prohibited Mr. White from contact with his grandchildren and nieces, absent probation approval and adult supervision. The 10th observes that a due process liberty interest in familial associations includes interests other than parental ones. How strong that interest is depends on the relationship between the offender and the children. If the relationship is custodial, then the interest would be similar to that of a parent. The less the relationship resembles a parental one, the less is the liberty interest. On remand, the district court will have to determine what the relationships are and accord a level of constitutional protection proportional to the significance of the liberty interest. The 10th reminds the court it should consider the length of time that has passed since Mr. White's prior conviction and any conduct, or lack thereof, that is predictive of his future conduct. The 10th holds that, regardless of the extent of the liberty interest involved, the district court did not improperly delegate its powers to the probation office. The supervised release term was only 5 years and the court ordered that the probation office approve contact unless Mr. White posed a safety risk and noted its expectation that the probation office would approve family members as adult supervisors.

National Federation of Independent Business v. Sibelius, 132 S. Ct. 2566 (2012) (NFIB"), otherwise known as the Obamacare case, does not change the 10th's opinion that Congress properly enacted SORNA pursuant to the Commerce Clause. The five justices in NFIB who found the Commerce Clause did not countenance the Affordable Care Act ("ACA") addressed the third area where the Commerce Clause operates: where activities substantially affect interstate commerce. But SORNA is copasetic with the Commerce Clause because it is consistent with the first and second areas the Commerce Clause operates in: regulating (1) the channels of interstate commerce; and (2) persons or things in interstate commerce. In SORNA the failure to register is coupled with interstate travel, at least in this case, which involved Mr. White traveling from one state to another without updating his registration. SORNA keeps interstate commerce free of yucky "immoral and injurious uses." The 10th doesn't buy Mr. White's contention that SORNA regulates inactivity, just as the ACA regulates the failure to get health insurance. The 10th feels that it must consider SORNA's "interstate travel" enforcement provision as well as its civil intrastate aspects.

The 10th sticks with its holding in U.S. v. Lawrance, 548 F.3d 1329 (10th Cir. 2008), that SORNA does not have an ex post facto problem, even though a number of state courts have held their sex-offender registration statutes violate the Ex Post Facto Clause. And the 10th believes SORNA is consistent with the 10th Amendment as well. SORNA doesn't conscript state officials to do anything. It merely incentivizes by conditioning federal funding on implementation of a federal mandate. It doesn't matter that Oklahoma has not implemented SORNA.