Wednesday, January 20, 2016

Probable Cause Supported Arrest of 11-Year-Old Girl

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

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

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

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

Unpublished Decisions

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

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

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

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

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

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

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

Police Theft While Executing Search Warrant Did Not Support Suppression Order

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

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

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

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

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

Unpublished Decisions

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

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

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

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

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

Evidence Accused Took Polygraph Was Admissible on Cross Examination

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

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

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

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

Friday, January 15, 2016

Life Sentence for Drug Convictions Is Not Unreasonable

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

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

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

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

Removal Based on Marriage Fraud Upheld

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

Unpublished Decisions

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

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

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

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

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

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

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

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

Court Affirms Denial of Relief to Capital Habeas Petitioners

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

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

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

SR Condition Allowing Warrantless Searches OK'd

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

Thursday, January 14, 2016

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

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

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

Unpublished Decisions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Convictions for Violating the Controlled Substance Analogue Enforcement Act Reversed

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

Using Officer's Taser Against the Officer Supports Enhancement for Use of a Dangerous Weapon

United States v. Quiver, 805 F.3d 1269(11/17/2015) (WY): The panel cites numerous Ninth Circuit cases to justify its decision that a four level enhancement for use of a dangerous weapon was appropriate here. Quiver fought with the officer trying to arrest him. The officer pulled out his Taser which Quiver took from him and then used on the officer’s leg. The presentence report included a four level enhancement for use of a dangerous weapon. Quiver argued that using Taser pressed against a thigh must be capable of causing death or serious bodily injury for the enhancement to apply. In other words, it has to be used in a way that is capable of causing death or serious bodily injury. The panel explains this argument may work with objects that are not normally considered weapons, like a shoe, a chair or a car. But here, as Quiver conceded, a Taser is a weapon. Therefore, only two elements have to be established: (1) the assault involved a dangerous weapon and (2) if so, the dangerous weapon was used more actively then brandishing, displaying or possessing it. The enhancement applies because Quiver took the Taser and actively used it as part of his assault on the officer.

Parties Cannot Waive Lack of Subject Matter Jurisdiction in 2255 Proceedings

U.S. v. Wetzel-Sanders, 2015 WL 7173321 (11/16/15) (Kan.) (published) - government joinder in a second § 2255 motion did not cure a successive petition problem. The district court lacked subject matter jurisdiction because there was no newly discovered evidence or reliance on a court decision that announced a new rule of constitutional law made retroactive by the Supreme Court. Although the parties agreed that a state criminal threat conviction was wrongly used as a predicate for a career offender sentence because the offense was not punishable by a sentence of imprisonment exceeding one year, the parties cannot waive the lack of subject matter jurisdiction.

Denial of Qualified Immunity Reversed

Callahan v. Wyandotte County, Kansas, 2015 WL 7172922 (11/16/15) (Kan.) (published) - reversal of the district court's denial of qualified immunity. There was no clearly established law that an officer could not arrest a group of people when unidentifiable members of that group, if not all of them, have committed a crime. Here there was a sting operation to catch officers involved in theft from residences during execution of search warrants. It was difficult to identify which officers were the thieves from the live video and audio feed because of their protective gear. The arresting officer was not fairly on notice that it was unlawful to arrest all members of the unit, only some of whom were later determined to have been involved in the thefts.

Error in Statutory Interpretation Does Not Justify Issuing a Certificate of Appealability

U.S. v. Mulay, 2015 WL 7173197 (11/16/15) (Kan.) (published) - the district court issued a certificate of appealability that did not specify a constitutional issue with respect to a § 2255 challenging use of a state criminal threat conviction as a predicate for a career offender sentence on the ground the offense was not punishable by more than a year of imprisonment. Consequently, the Tenth partially remands for the district court to reconsider. A statutory interpretation error is insufficient to justify issuance of a certificate of appealability.
U.S. v. Fisher, 2015 WL 6904843 (11/10/2015) (KS): Fisher said that the district court did not rule on whether the government breached the plea agreement. The panel finds this issue is moot because he already received all the relief he requested for that alleged breach.

Fisher’s second issue was whether the district court violated Rule 32 by not ruling on his vindictive prosecution claim. The panel finds he waived this issue because he did not raise it thoroughly in his brief. Only by cobbling together sentences here and there in his brief could one even say that he questioned the district court’s ruling. The panel says that isn’t enough to meet the requirements of 10th Circuit Rule 28(a)(8).

A cautionary aside: the panel writes that it was Fisher’s burden to tell the district court it wasn’t following Rule 32. Since he did not then it was his “burden to argue in his opening brief that the district court committed plain error.” I would note that in Zander, 794 F.3d at 1232, n. 5 the court ruled that the defense had adequately addressed the plain error issue in his reply brief. If one can articulate a standard of review in the opening brief, one may be safe in waiting until the reply to discuss plain error.

Rule 41 Violation Affirmed as Basis for Suppression Order

U.S. v. Krueger, 2015 WL 6904338 (11/10/2015) (KS): The panel upholds the district court’s suppression order grounded on a Rule 41 violation. I understand you may be astonished because, after all, the 10th Circuit has never held that the government’s violation of Rule 41 justifies the suppression of evidence. A point which Judge Ebel noted in his majority decision. Here, however, the panel addressed Rule 41(b)(1) which prohibits a magistrate from issuing warrants outside the district in which he sits. It had to decide whether Krueger had shown that any prejudice he suffered justified the suppression of evidence.

A federal magistrate in Kansas issued a warrant that allowed agents to search Krueger’s residence in Kansas for computers and cell phones. When the agents got to the house, Krueger’s roommate told them that he was in Oklahoma City. Agents there found out where he was staying and a different federal magistrate in Kansas issued a warrant authorizing the agents to search for the same items in Oklahoma. As a result the agents got into the place where Krueger was staying, convinced him to waive his Miranda rights, got a confession and his permission to assume his on line presence on his peer to peer networking account. This evidence of course led to an indictment for distribution of child pornography.

The district court ruled that the second warrant violated Rule 41(b)(1). It concluded the magistrate in Kansas did not have authority to issue a warrant for property already located in Oklahoma. Since the government conceded this point, the only issue on appeal was whether Krueger had shown that he was prejudiced by the Rule violation. The panel found that he had, in the sense that the Oklahoma search would not have happened because the government would not have obtained the Oklahoma warrant if Rule 41(b)(1) had been followed.

In his concurrence Judge Gorsuch used a different (better?) approach. He said that the Rule 41 violation here was a Fourth Amendment violation (an issue the majority refused to decide). A warrant issued for a search and seizure beyond the territorial jurisdiction of a magistrate’s powers is no warrant at all and is null and void. He explained that repeatedly, state and federal courts have found that a warrant issued in defiance of a law’s restrictions on the territorial reach of the issuing authority will not qualify as a warrant for Fourth Amendment purposes. In his view, this ends the court’s inquiry - proving prejudice or disputing harmlessness is not part of this analysis. And to demonstrate his discriminating acumen in today’s pop cultural Judge Gorsuch tells us that, “[o]urs is not supposed to be the government of the Hunger Games with power centralized in one district, but a government of diffused and divided power, the better to prevent its abuse.”

Suppression of Evidence in Train Search Affirmed

U.S. v. Hill, 2015 WL 6847861 (11/9/15) (NM) (published) - 10th affirms suppression of evidence in a train interdiction case. DEA agent Small testified for the government that since 9/11, Amtrak wants law enforcement to find the owner of a bag that lacks an ID tag and "if we cannot find the owner of the bag, the bag will not stay on the train as it leaves Albuquerque." On cross-examination the defense showed that Small's understanding of this policy came from "his generalized conversations with train conductors, not from a memorialized Amtrak policy," that Small had had no relevant discussions with Amtrak employees on the date in question, that there was no written policy between Amtrak and the DEA discussing procedures for bags without ID tags, and that Amtrak enforced no requirements that bags be tagged. The government pointed to an internet Amtrak baggage policy stating that "all items must contain an ID tag--free tags supplied at stations." However, there was nothing in the record showing that this policy is posted in Amtrak stations or on the trains or that it is set out on Amtrak tickets or boarding documents. The 10th concludes the government did not demonstrate that a reasonable traveler would have a diminished possessory interest in untagged luggage stored in the common baggage area. Small's actions "deviated significantly from a reasonable traveler's expectations as to how his bag would be treated in the common storage area." While Hill could reasonably expect that incoming passengers might reposition his bag, he also reasonably would have expected he could access his bag in the common storage area whenever he wanted. Small's actions amounted to a seizure without reasonable suspicion, exigency, or the issuance of a warrant, in violation of the Fourth Amendment.

Court rejects challenges to meth trafficking conviction

U.S. v. Ibarra-Diaz, 2015 WL 6847828 (11/9/15) (Kan.) (published) - Meth trafficking conviction affirmed. With the exception of a sufficiency of the evidence claim, Mr. Ibarra-Diaz's appellate claims are reviewed for plain error because they were not raised below.

Hearsay objections to various statements did not preserve Confrontation Clause arguments. The Court rejects challenges to the following detective testimony: 1) that he began his investigation based on info he obtained from the CI; 2) that the confidential informant (CI) said he was afraid of Mr. Ibarra-Diaz - the Court notes the district court told the jury to disregard this; 3) that the CI called the detective out of the blue and told him the CI had discussed a drug transaction with Mr. Ibarra-Diaz -- the Court finds this was not for a hearsay purpose because it was offered to explain why the detective did not put a body wire on the CI; 4) that the CI told the detective he gave the detective's phone number to Mr. Ibarra-Diaz -- this recounted nonverbal conduct, not a statement; 5) that the CI told the detective Mr. Ibarra-Diaz had a pound of meth to sell for $18,000, which was not testimonial hearsay; 6) that the CI suggested the detective pretend to be a stripper's boyfriend from Salina who did not speak Spanish -- again, not hearsay; 7) that the detective had prior information that Mr. Ibarra-Diaz had purchased a Ford Explorer -- not hearsay; 8) that the detective had other officers stop Mr. Ibarra-Diaz's car because the CI told him the CI was sent over with a pound of meth that was in the car -- not hearsay; 9) that the CI told the detective there was more meth at Mr. Ibarra-Diaz's house. Although the government conceded this statement was hearsay and that its admission violated the Confrontation Clause, the 10th decides Mr. Ibarra-Diaz failed to show violation of his substantial rights because he did not demonstrate a reasonable probability that the trial outcome would have been different without the error. The detective's testimony about why he reacted as he did at the drug bust - including the fact that he was a single dad raising two children - was irrelevant and likely to mislead the jury. But Mr. Ibarra-Diaz failed to show clear or obvious error that would meet the plain error standard and cannot show that the error impacted his substantial rights.

By failing to timely raise a duplicity challenge to the indictment based on the government's presentation of two factual predicates -- meth from the vehicle and meth from the residence -- for the same offense, Mr. Ibarra-Diaz waived it.

There was sufficient evidence to support the conviction. Mr. Ibarra-Diaz failed to challenge the sufficiency of the evidence to convict him as a principal in his opening brief and therefore waived it. Anyway, there was ample evidence on which the jury could have convicted him as an aider and abetter.

Unpublished decisions

U.S. v. Hendrix, 2015 WL 2015 WL 6500602 (10/28/15) (Kan.) (unpub'd) - Mr. Hendrix avoids supervised release, although for how long is not clear. The same Kansas judge who has a penchant for upward variances imposed a prison term for a supervised release violation, but did not impose a term of supervised release. Two hours and 40 minutes after the adjournment of the hearing, the court reconvened and imposed a supervised release term that he said he had forgotten to pronounce. A divided 10th rules the district court did not have jurisdiction to change the orally pronounced sentence. The sentence became final once there was a formal break in the proceedings. Rule 35 did not authorize a change in the final judgment because there was no "clear error." Rather, adding a supervised release term was a substantive, discretionary decision. 18 U.S.C. § 3583(e)(2), which allows a district court, at any time prior to expiration or termination of a supervised release term, to extend a supervised release term if less than the maximum authorized term was previously imposed, did not justify the judgment modification because the district court did not say it relied on that provision when it added the term. The district court said it was "clarifying" the sentence, not extending the supervised release term. The error could not be harmless because this was a jurisdictional matter. Nor does the 10th think it could affirm on the alternative ground that § 3583(e)(2) justifies the additional term. An extension under that provision is a discretionary matter that is best left to the district court to consider, the 10th says. The 10th indicates Mr. Hendrix's success may be short-lived. The 10th notes it's up to the lower court to consider invoking its jurisdiction under § 3583(e)(2). Judge Lucero dissents. He thinks the district court was just correcting an obvious error by failing to rule on Mr. Hendrix's argument that he should receive an additional supervised release term in lieu of imprisonment. I suspect Mr. Hendrix was not asking for more supervised release on top of a prison term. But, nonetheless Judge Lucero feels the district court just committed a clear oversight that there should be some tolerance for correcting. It wasn't like the court changed its mind, which could not be the basis for assuming jurisdiction, Judge Lucero opines,

U.S. v. Camargo-Chavez, 2015 WL 6517849 (10/29/15) (Okl.) (unpub'd) - An illustration of an unfortunate work-around for the wonderful case of U.S. v. Osage, 235 F.3d 518 (10th Cir. 2000), in which the 10th held destroying a tamale can was beyond the scope of consent to searching the bag that contained the tamale can. In this case, Mr. Camargo-Chavez consented to a search of his car. The officers ended up tearing open a sealed case of beer that seemed unusually light and covered with excess glue. The 10th finds probable cause to search and destroy the beer case based on its unusual features plus: confidential-source information; past meth-selling history; being parked in a drug-dealing location; and a knife with glue on it, despite Mr. Camargo-Chavez's denial that he had a knife or other weapons in the car.

U.S. v. Collins, 2015 WL 6535318 (10/29/15) (Okl.) (unpub'd) - The 10th rejects an ineffective assistance claim on the grounds that Mr. Collins did not show that, had counsel acted competently, he "likely" would have received a lower sentence. Thus, the 10th ignores that the defendant's burden is only to show an undermining in the confidence of the outcome, which the Supreme Court has made clear is less than a preponderance standard. The district court said it imposed a sentence at the bottom of what the guideline range would be absent Mr. Collins' career-offender status, given the oppressiveness of that guideline. The court imposed 168 months in prison. But the bottom of the guideline range, absent career-offender status, was actually 120 months under the PSR calculations. So perhaps an extra 4 years in prison for Mr. Collins due to bad math or misreading the sentence table.

U.S. v. Palmer, 2015 WL 6467951 (10/27/15) (Ut.) (unpub'd) - The 10th rejects Mr. Palmer's contention that his child-porn guilty plea was involuntary because his emotions overcame him when counsel persuaded him to enter the plea based on their shared [unspecified] religious beliefs. The 10th notes that child porn cases are always loaded with emotion. If it granted Mr. Palmer's argument, every child porn plea would be suspect and chaos would reign. In any event, a religious belief would be a self-imposed coercive element that would not render a plea involuntary.

U.S. v. Garcia-Jimenez, 2015 WL 6445705 (10/26/15) (Okl.) (unpub'd) - The 10th rejects the notion that USSG § 5G1.3(b), which requires a sentence adjustment for already-served state prison time, applies in this case where there was no undischarged prison term But the 10th also notes the district court applied note 8 of § 2L1.2, which suggests a downward departure where the defendant is "found" while serving state time and § 5G1.3(b) doesn't apply. In a footnote, the 10th bemoans the fact that, Mr. Garcia-Jimenez had committed a number of drug and firearm crimes and been removed three times before he was charged with illegal reentry. The 10th calls this lack of prosecution "tragic."

Monday, November 02, 2015

Residual Clause of Career Offender Guideline is Unconstitutionally Vague

United States v. Madrid, No. 14-1259 (published) The Tenth holds that Mr. Madrid's prior conviction for statutory rape in violation of Tex. Penal Code sec. 22.021(a)(1)(B)(i) and (a)(2)(B) (2004) was not a crime of violence for purposes of the career offender guideline, USSG sec. 4B1.1. The Court stated that the offense does not have any element of use of force or coercion. It is also not a forcible sex offense, because a statute encompassing situations in which the victim may factually consent to sexual activity is not a forcible sex offense. Finally, the Court (rather than relying on the government's concession) explicitly held that guidelines can be found void for vagueness, and more specifically that the residual clause of sec. 4B1.2(a)(2) is void for vagueness following Johnson.

Friday, October 30, 2015

Lack of Records Dooms Petitioner's Attempt for Relief from Removal

Espitia v. Lynch, 2015 WL 5315200 (9/14/15) (unpub'd) - The 10th holds that Mr. Espitia was ineligible for adjustment of status, removal cancellation or asylum because he could not prove his prior controlled substance conviction was not "a "particularly serious crime." That the necessary records were no longer available was his problem, not the government's, since he had the burden to prove eligibility for relief.

Habeas Petitioner Denied Relief Where Counsel Erroneously Advised Petitioner Regarding Plea

Jones v. Bryant, 2015 WL 5472858 (9/18/15) (Okl.) (unpub'd) - The 10th affirms denial of a habeas petition claiming ineffective assistance of counsel. Defense counsel advised Mr. Jones to reject a plea agreement to 10 years for burglary. Counsel told Mr. Jones he should take his chances with a blind plea to the charge, facing a sentence range of 7 to 20 years because, he would be eligible for "judicial review" through which the court could subsequently modify his sentence. Counsel gave this advice because he thought Mr. Jones only had one prior felony conviction. He based this conclusion on the criminal information and conversations with Mr. Jones. After the guilty plea, the presentence report revealed two prior felony convictions. This precluded judicial review. The court imposed the max 20-year sentence---2 times what Mr, Jones had been offered. In collateral proceedings, Mr. Jones contended counsel should have investigated his criminal history before advising him to reject the plea offer. Applying "double deference," [under both Strickland and AEDPA], the 10th finds no clearly established Supreme Court precedent that counsel performed unreasonably. Counsel could expect the state to act in its own interest and find all previous convictions at the charging phase Given the match between the criminal information and Mr. Jones' recitation of his criminal history, counsel could rely on the information he had. The 10th observes that the Supreme Court has rejected the proposition that "it is prima facie ineffective assistance of counsel to abandon an investigation of their client's background after having only a rudimentary knowledge of his history from a narrow set of sources." Cullen v. Pinholster, 131 S. Ct. 1388, 1406 (2011)."

Tenth rejects numerous evidentiary arguments to affirm child porn conviction

U.S. v. Gutierrez, 2015 WL 5315655 (9/14/15) (N.M.) (unpub'd) - The 10th affirms a child porn conviction. The 10th is untroubled by the government's failure to disclose until the eve of trial the date-and-time-related content of the metadata associated with the porn photos. Mr. Gutierrez had to take other affirmative steps to gather the information besides asking for it, such as a motion for a bill of particulars. The 10th finds no support for Mr. Gutierrez's contention that the government was obliged to provide him with an analysis of the metadata. It was enough that he had access to the metadata at the FBI office. A district court does not have to hold an evidentiary hearing to fulfill its Daubert gatekeeping role, the 10th holds. It was not plain error to admit photos that had obviously wrong digitized dates and times. The expert agent was not merely guessing when he opined as to the dates photos were taken. He relied on various data from cell phones, cameras and Mr. Gutierrez's computer. The 10th finds the district court did not abuse its discretion when it prevented Mr. Gutierrez from introducing the teenage victim's sexual behavior after she reported Mr. Gutierrez's improper photographing to the authorities. The post-report evidence didn't support the defense theory that the teenager fabricated the allegations to get away from Mr. Gutierrez's strict control. The 10th also holds that the label "made in China" on cell phones and a camera were not inadmissible hearsay. The statement is not testimonial for Confrontation Clause purposes and manufacturers' markings are not hearsay.

Obviously biased juror does not bar execution; Tenth defers to state court determination on issue

Eizember v. Trammell, 2015 WL 5332960 (9/15/15) (Okl.) (Published) - A divided 10th gives the go-ahead to yet another Oklahoma execution. The 10th defers to the state courts' juror-bias assessments. One juror, D.B., indicated on her written questionnaire: she believed if you take a life you should lose yours; she had no reservations about seeing someone put to death; the death penalty saves taxpayers the expense of supporting a criminal for the rest of his life; the Oklahoma death penalty is "definitely not used too often";if she were one of the parties she would not want her to be a juror because she would not hesitate to impose the death penalty. During voir dire she said: "If they're in prison for the rest of their lives without parole, why not the death penalty?" She also indicated she would probably automatically vote for death, given the choice between that and life with or without the possibility of parole. Nonetheless, the trial court found D.B. to be qualified to be a juror and the Oklahoma Court of Criminal Appeals ("OCCA") found support for that conclusion. The 10th concedes some of D.B.'s responses "do seem to suggest a bias." But the 10th notes D.B. filled out the questionnaire before she received instructions on the law and she did say some things that indicated she could be fair. For example, she suggested a willingness to consider all aggravating and mitigating circumstances, to follow the court's instructions and to keep an open mind. Still, the 10th admits, D.B.'s statements remain a "mixed bag" and maybe the trial court could have lawfully excused her for cause or the OCCA could have reversed the trial court's decision to keep her. But this doesn't add up to an unreasonable decision by the OCCA or a necessarily wrong decision by the trial court that had the benefit of observing D.B. in person. The Supreme Court has left considerable room for trial court discretion and AEDPA magnifies that discretion, the 10th says. For similar reasons, the 10th is okay with another juror, J.S., who wasn't as obviously biased as D.B. He was in favor of the death penalty except in a few appropriate cases and, if he were one of the parties, he would not want him as a juror because "If guilty, he will be on death row and eventually executed."

Judge Gorsuch, not joined by the other two, insists the OCCA applied the correct standard, i.e., whether a juror's views prevented or substantially impaired her or him from the performance of her/his duties. The OCCA expressed that standard, but also said things indicating it thought the standard was whether the juror would automatically vote for death. But, given the presumption that state courts know the law, the judge finds the OCCA applied the right standard. The majority finds Mr. Eizember had not claimed the OCCA used the wrong standard, thus forfeiting the argument. The 10th also says, even if the OCCA did use the wrong standard and so AEDPA deference doesn't apply, affording significant deference to the trial court, which is also presumed to know the law, still requires denial of habeas relief.

In other issues, the 10th rejects Mr. Eizember's contention that the jury was confused about how long he would have to serve in prison before being eligible for parole if he got life with the possibility of parole. AEDPA precludes relief, the 10th holds, because Simmons only requires a correct explanation of the meaning of life without the possibility of parole, which happened here. AEDPA precludes extending Supreme Court cases beyond their holdings. The 10th also rejects Mr. Eizember's argument that a concededly-wrong, "depraved mind" murder instruction deprived him of his right under Beck v. Alabama to afford the jury a lesser-included offense option. There was such an option for felony murder, the 10th observes, and that is enough to satisfy Beck. It doesn't require the best option for the defendant, just any option that fits the circumstances, which felony murder did [where Mr. Eizember beat the victim with a gun during the course of a burglary, but contended he did not intend to kill him]. And, besides, a correct depraved mind murder verdict was not a real option under state law since the jury found beyond a reasonable doubt that Mr. Eizember intentionally killed the victim.

Judge McHugh concurs in the result. She explains that she agrees with the dissent that the OCCA applied the wrong standard. But she agrees with Judge Gorsuch that Mr. Eizember forfeited the wrong-standard argument and that the significant deference to the trial court requires denial of relief.

Judge Briscoe dissents from the juror-bias ruling. She thinks Mr. Eizember did raise the wrong standard issue sufficiently. She also believes the OCCA applied the wrong automatic-vote standard. In addition, she thinks the trial court also used the wrong standard based on the trial court's voir dire questions. Finally, she concludes D.B. was biased due to her strong preference for the death penalty. D.B. could not be trusted to abide by the law.

Prisoner Suit Against Warden, Nurse Who Said Radioactive Water was "Safe" Goes Forward

Walker v. Hickenlooper, 2015 WL 5847486 (10/8/15) (Col.) (unpub'd) - Partial victory for a prisoner whose prison water was contaminated with uranium. The 10th reverses grants of qualified immunity to a warden who allegedly knew from a state administrative notice that the water supply of Sterling, Colorado, was contaminated and yet told inmates the tap water was perfectly safe to drink and the warden who knew about the contamination and did nothing to provide safe water, even though he knew his inaction would create serious health risks. The claims also stand regarding a nurse who allegedly responded to Mr. Walker's complaints of contamination symptoms by insisting the water was safe and she didn't provide safer water, even though she could have. With respect to another warden, Mr. Walker's claims fail because he did not proffer any plausible basis to believe the warden knew the alternative source of water provided to the inmates was also contaminated. Qualified immunity prevails regarding the governors. There was no violation of a clearly established right, the 10th says. No federal appellate court has held in a published decision that state governors violate the constitution by failing to remedy contamination of a prison's water supply. And no relief for hiding the contamination for 6 years. Mr. Walker has gotten his day in court so far and does not allege he has less chance of success due to the delay.

Divided Court Agrees with District Court's Denial of Qualified Immunity for Officer

Tenorio v. Pitzer, 2015 WL 5813292 (10/6/15) (N.M.) (Published) - A divided 10th affirms the district court's denial of summary judgment to an Albuquerque police officer who shot Mr. Tenorio. The 10th holds Mr. Tenorio's allegations, if true, establish Officer Pitzer did not have probable cause to believe Mr. Tenorio presented a threat of serious physical harm when the officer shot him. A woman reported in a 911 call that Mr. Tenorio was in the kitchen intoxicated and holding a knife to his own throat. She said she was afraid Mr. Tenorio would hurt himself or his wife. The dispatcher told officers Mr. Tenorio had vandalized windows at the home and had been violent in the past. Officers met the caller who appeared frightened. The woman explained Mr. Tenorio had gotten mad because they took beer away from him. Before entering the home, Officer Pitzer said he was "going lethal." The officers did not hear any sounds, such as raised voices, that indicated a disturbance. Without announcing his presence, Officer Pitzer two other officers entered the living room. Officer Pitzer told Mr. Tenorio's wife to move out of the kitchen. As she did so, she told Mr. Tenorio to "put that down." Mr. Tenorio followed his wife out of the kitchen. He had a blank stare. He carried loosely by his side a knife with a 3 1/4 inch blade. He walked at an "average speed." The officer yelled 4 times: "Put the knife down." After Mr. Tenorio took 2 1/2 steps into the living room, the officer shot him. Mr. Tenorio was hospitalized for two months as a result of his injuries. Judge Armijo found that a reasonable jury could determine Mr. Tenorio did not have sufficient time to comply with the order to put his knife down, did not make a threatening gesture and was not within striking distance of Officer Pitzer he was shot. The 10th interprets prior case law to mean if a suspect is holding a knife and is not charging at or threatening an officer, it is unreasonable for the officer to use deadly force. That is what happened here under the allegations and district court findings, the 10th concludes.

Judge Phillips dissents. He disagrees with the majority's interpretation of 10th precedent. The court must take a totality-of-the-circumstances approach, he says. Under that approach, Mr. Tenorio's advancing with a knife toward the officer in a 16-foot room with a difficult retreat, and with the possibility of him grabbing a gun from an officer, created probable cause to believe Mr. Tenorio presented a serious threat of harm to someone. The judge disagreed with the district court's conclusion that Mr. Tenorio might not have had enough time to comply with the command to drop his knife. In any event, the judge notes Mr. Tenorio previously did not comply with his family's requests to drop the knife. Plus the judge did not believe Officer Pizer had enough time to avoid being stabbed. It didn't matter, the judge says, that Mr. Tenorio did not gesture threateningly.

"Drugs minus 2" reduction unavailable where plea agreement specified the sentence

U.S. v. Price, 2015 WL 5915954 (10/9/15) (Kan) (unpub'd) - The 10th reviews a "Drugs Minus 2" 18 USC § 3582(c)(2) motion with a Rule 11(c)(1)(C) plea agreement with unfriendly reasoning and an unhappy result The parties agreed to a 20-year sentence. The agreement did not mention a guideline range but did say: "the proposed sentence does not offend the sentencing guidelines, but, because the sentence is sought under Rule 11(c)(1)(C), the parties are not requesting the imposition of a guideline sentence." The probation office, the government and the district court all figured the guideline range to be 210 to 262 months, making the agreed-to sentence within the range. Mr. Price filed a § 3582(c)(2) motion arguing his guideline range had subsequently been decreased to 168 to 210 months The 10th strictly applies Justice Sotomayor's concurrence in Freeman v. U.S., 131 S. Ct. 2685 (2011), the controlling law, according to the 10th. The 10th says Justice Sotomayor's opinion allows for an 11(c)(1)(C) sentence to be reducible pursuant to § 3582(c)(2) only if the plea agreement either (1) calls for a sentence within a range or (2) provides for a specific prison term but "makes clear" the basis for the specific term is the guideline range. Here, the 10th observes, the agreement did not call for a range, but for a specific prison term, and there was no mention of a range. The 10th sees the reference in the agreement to the parties not requesting a guideline sentence as showing no connection to a guideline range. Mr. Price's sentence was based on the agreement, not a guideline range, the 10th concludes. It doesn't matter if the government and the court relied on the guideline calculation. The agreement did not expressly rely on that calculation. So Mr. Price is out of luck.

Friday, October 09, 2015

Unpublished Decisions

U.S. v. Richardson, 2015 WL 5672654 (9/28/15) (Kan.) (unpub'd) - A cautionary tale. Seeking a downward variance in violation of the plea agreement brings calamity to Mr. Richardson. The 10th holds the government did not breach the plea agreement when it asked for a bunch of enhancements the plea agreement precluded, because the district court found Mr. Richardson's downward-variance motion breached the agreement. Since the government didn't breach the agreement, the appeal waiver in the agreement prevents Mr. Richardson from appealing. In other words, because of the breach, the government can ignore everything in the plea agreement, but Mr. Richardson still must follow the agreement's provisions. Something seems wrong with this picture.

U.S. v. Ordaz, 2015 WL 5692179 (11/29/15) (Wyo.) (unpub'd) - The 10th holds defense counsel did not act deficiently when counsel did not seek independent testing of a substance the government claimed to contain meth and a cutting agent. Mr. Ordaz asked counsel to get the testing because he said the substance was solely a cutting agent. It was a reasonable strategic decision, the 10th says, to rely on counsel's "vigorous" attack on the government's tests at trial, rather than the uncertain results of the new test. According to the 10th, counsel could not have engaged in that attack, if the independent tests came back positive for meth.

Reid v. U.S., 2015 WL 5672624 (9/28/15) (Okl.) (unpub'd) - A procedural, equitable-tolling victory for a prisoner in a Tort Claims Act suit. BOP publications stated he had to file his administrative claim on Standard Form 95. This wasn't true. He could have used alternative written notice of his claim. The BOP refused to answer his requests for Form 95. As a result, he filed his claim notice to BOP after the 2-year deadline. His access to legal materials through computer research that said he didn't have to use Form 95 did not eliminate Mr. Reid's equitable-tolling argument. He "understandably relied on official BOP documents." So the 10th remands for a possible evidentiary hearing to consider finding equitable tolling. The 10th leaves it up to the district court to consider how Mr. Reid's inaction for the first 19 months factored into the equitable-tolling analysis. The 10th does observe: "litigants often file late in a limitation period."

Carillo v. Zupan, 2015 WL 5672944 (9/28/15) (Col.) (unpub'd) - The 10th rules against a petitioner in a § 2254 habeas case. Mr. Carillo obtained an amended sentence when his restitution was reduced. Within a year of that amendment he filed a § 2254 challenging his conviction. The 10th holds, pursuant to Prendergast v. Clements, 699 F.3d 1182 (10th Cir. 2012), that the amended sentence did not restart the one-year statute of limitations when his challenges were just to his conviction, which was not changed by the new judgment. The 10th acknowledges the 11th has held a corrected sentence restarts the limitations period, even when the petitioner is challenging the conviction, not the corrected sentence.

Unpublished Decisions

U.S. v. Serrano-Rodriguez, 2015 WL 5519797 (9/21/15) (Okl.) (unpub'd) - Answering "no" to the court's question: "Do you know any legal reason why the sentence cannot be imposed as stated?" is not a waiver of any issue unraised in district court. It's just a forfeiture, triggering plain error review. It was not a plain error for the district court to fail to justify as an upward departure its imposition of supervised release on a deportable alien, even though § 5D1.1(c) contemplates no supervised release for such a person. Mr. Serrano-Rodriguez cited no case law in his favor and there are 3 circuits that don't require departure treatment.

Martin v. The County of Santa Fe, 2015 WL 5559414
(9/22/15) (N.M.) (unpub'd) - The 10th affirms a dismissal of a § 1983 suit on qualified immunity grounds. Officers responded to a call that a man had been shot in the leg. Officers found Mr. Martin at an apartment complex in the dark except for the lighting from the headlights of Mr. Martin's car. He had been shot several hours earlier at a grocery store. He returned to his girlfriend's apartment because he didn't want medical attention. But the officers thought the shooting occurred at the complex and the shooter was still around. Mr. Martin acted intoxicated and belligerent and never informed the officers he had been shot earlier somewhere else. So things did not go well for him. When Mr. Martin did not comply with a request to get on his belly, officers forced him onto his belly, handcuffed him, and restrained him on the ground for 9 minutes. and then sent him off to the hospital against his will. The 10th holds, it was not clearly established this was a violation of the 4th Amendment because the officers reasonably felt they needed to secure a dark and chaotic scene where they reasonably believed the shooter was somewhere at the scene and then reasonably believed they needed to facilitate Mr. Martin's nonconsensual custodial transport to the hospital.

Thursday, October 08, 2015

Divided Panel Denies All Relief for Capital Habeas Petitioner

Hancock v. Trammell, 2015 WL 4910981 (8/18/15) (Okl.) (Published) - The 10th affirms Mr. Hancock's Oklahoma's death sentence. The 10th rejects his contention that the Oklahoma Court of Criminal Appeals ("OCCA") relied on an unreasonable determination of fact that the state trial court allowed certain evidence in under the state equivalent of Rule 609. If that were true then Mr. Hancock could have avoided the stringent AEDPA prerequisites for relief.

The evidence in question is that, 19 years before the killing involved in this case, Mr. Hancock successfully raised a defense of-self-defense so that he only was convicted of manslaughter. The state apparently wanted the jury to believe Mr. Hancock's current self-defense defense was just part of his usual scheme to get away with murder. The 10th first finds Oklahoma's plain error standard under which it resolved the issue was like the constitutional due process test. So it adjudicated the issue on the merits, thus sticking Mr. Hancock with the AEDPA requirements, absent an unreasonable fact determination. Then the 10th analyzes the OCCA decision and concludes the OCCA's decision is equally consistent with either (1) a mistaken belief the trial court relied on Rule 609 and thus deferred to that determination or (2) the OCCA independently took on the analysis itself and found the probative value was not substantially outweighed by the unfair prejudice of the evidence. So Mr. Hancock did not meet his burden to prove a reliance on an unreasonable determination of fact. Mr. Hancock waived any argument that the OCCA unreasonably applied federal law.

The incident in this case began with one of the soon-to-be-deceaseds swinging a metal bar at Mr. Hancock's head and perhaps hitting it. Mr. Hancock objected to instructions that indicated self-defense was unavailable if Mr. Hancock engaged in mutual combat or the deceased withdrew from attacking Mr. Hancock. The 10th finds sufficient evidence to justify the instructions because there was evidence of breaks from the deceased's attack and mutual combat following that and of the deceased's withdrawal from combat by stepping away from Mr. Hancock, going into another room and later going into the backyard where Mr. Hancock shot him with the deceased's own gun.

Mr. Hancock forfeited one issue by only raising it in one sentence in a footnote in the opening brief, another one by questioning the existence of evidence to support an instruction without making it a separate basis for relief in the habeas petition and others by not raising them at all in the petition. The 10th holds it was not unreasonable for the OCCA to find no prejudice from counsel's failure to seek a lesser-included instruction for manslaughter while resisting a criminal attempt, rather than for heat-of-passion manslaughter. Evidence supported the latter: adequate provocation, emotion, homicide during passion & causal connection to the homicide. Perhaps the former was less apropos. That required a killing in the honest but unreasonable belief that Mr. Hancock was in danger.

The OCCA reasonably applied the constitutional sufficiency-of-the-evidence standard, It did not have to adopt Mr. Hancock's version of events. It was okay to exclude evidence of the victims' gang affiliation. There was some evidence indicating biker-gang membership and Mr. Hancock's fear of the victims as a result. The preclusion of admission of the recordings of Mr. Hancock's statements to police did not interfere with Mr. Hancock's fundamental right to present a defense. He contended they would counter the state's attack on his credibility. But Mr. Hancock was able to present his version of events and that's all the constitution requires, the 10th says. The 10th finds Mr. Hancock was not prejudiced by counsel's failure to impeach a state eyewitness with two of her prior statements where counsel did impeach her with another inconsistent statement.

Finally, the 10th concludes there was sufficient evidence to prove the "heinous, atrocious or cruel" aggravator with respect to both dead people. The one victim received 3 painful shots, ran from Mr. Hancock to escape and was shot while on the ground, moaning and writhing in pain. The other victim received wounds to his face, hand and chest, saw his friend being shot, was shot while lying wounded on the floor and lingered before dying. It didn't matter if the OCCA found similar circumstances insufficient in another cases. It wasn't up to federal courts to police state law consistency.

Judge Lucero dissents. He finds the OCCA decision was clearly based on the mistaken belief that the trial court relied on Rule 609 to admit the offending evidence. Reviewing the due process question de novo, Judge Lucero concludes the admission of the old manslaughter conviction rendered the trial fundamentally unfair. That Mr. Hancock had previously raised self-defense had some limited probative value to show Mr. Hancock knew about the self-defense defense when he killed the victims. But he could have learned about that defense in any number of ways besides in his manslaughter case, including from Shakespeare. The conviction itself had no probative value. Not all prior convictions for similar crimes are probative, the judge points out. And here the crimes were not very similar. The prejudice was "immense," the judge says. The jury could have convicted him because of his prior offense. The prosecutor mentioned the conviction and the self-defense plea 6 times in closing. The prosecutor reminded the jury of the instruction to only consider it for the knowledge element, but Judge Lucero says: "There's a limit to the frequency with which a jury can be told 'don't think of an elephant' before we can assume the jury was being asked, with a wink and a nod, to think of an elephant." The judge pointed to the wonderful quote in the Medina-Copete case that the "naive assumption that prejudicial effects can be overcome by jury instructions, all practicing lawyers know to be unmitigated fiction." Plus the prosecutor also made improper propensity arguments as well. The entire case came down to whether the jury believed one eyewitness or Mr. Hancock. The state used the old conviction and self-defense plea to tell the jury Mr. Hancock was not to be believed. It went to the heart of the trial. Habeas relief is warranted, Judge Lucero concludes.