Tuesday, July 28, 2015

Failure to Allow Allocution at Sentencing on Supervised Release Revocation is not Plain Error

U.S. v. Craig, 2015 WL 4509435 (10th Cir. 7/27/15)(Kan.) - At sentencing on a supervised release revocation, it was not plain error to deprive the defendant of his right to allocute. Although defense counsel was asked by the court if counsel had any objections to the proposed sentence or wished to make any statements, the defendant was not personally asked if he would like to make a statement. There was no objection, so the plain error standard applies. It is no excuse that counsel would have been rude to interrupt. "It is a lawyer's job to object--by way of interruption, if the circumstances warrant--when the court is in the midst of committing an error." The court also doesn't buy Mr. Craig's argument that it would have been futile to object. While the complete denial of allocution at an original sentencing requires reversal, violations of the right of allocution under Rule 32.1 do not. The error was not plain under Tenth Circuit and Supreme Court law. The fourth requirement of plain error review is also unmet because any potential error did not seriously affect the fairness, integrity, or public reputation of the proceeding. Defense counsel acknowledged that Mr. Craig understood and did not seek to challenge the district court's proposed sentence. Besides, there was no suggestion that Mr. Craig had some unspoken words ready to go that might have mitigated his sentence.

Friday, July 24, 2015

Utah may not prosecute tribal members for crimes on land Tenth Circuit has held to be tribal; finality rules!

Ute Indian Tribe of the Uintah and Ouray Reservation v. State of Utah, 2015 WL 3705904 (6/16/15) (Ut.) (Published) - The 10th exalts finality and prevents Utah from prosecuting tribal members for conduct occurring on land the 10th Circuit had previously found to be within tribal boundaries. In a series of decisions the 10th had decided that the Uncompahgre reservation, the Uintah Valley Reservation and certain national forest areas were Indian country. Subsequently, the United States Supreme Court held in Hagen v. Utah, 510 U.S. 399 (1994), that the same congressional actions that the 10th had ruled did not diminish tribal territory did diminish at least a part of the Uintah Valley Reservation. The 10th recalled its mandate to modify its prior rulings to take account of that decision. The 10th refused to grant Utah's request to extend Hagen's logic to hold the Uncompahgre lands and national forest were diminished as well. The 10th stood by the finality principle, even if a different result might have been "more accurate" in light of Hagen. Utah refused to accept this holding. It started prosecuting tribal members on land the 10th had held to be Indian country. The tribe sought a federal court injunction to stop this. The 10th granted the injunction. The state's actions endangered tribal sovereignty. The arrests on rights-of-way running through Indian country were arrests in Indian country. That state officers may enter Indian lands to investigate off-reservation crimes does not give the state the authority to prosecute Indians in state court for crimes in Indian country. Public safety would not be endangered by an injunction, the 10th rules, because the state officers could still patrol the rights of way and stop motorists suspected of traffic offenses. They just couldn't prosecute the drivers if they are tribal members. The 10th may stop a state prosecution when effectuating a previous federal judgment. The 10th sums up: "A system of law that places any value on finality---as any system of law worth its salt must---cannot allow intransigent litigants to challenge settled decisions year after year, decade after decade, until they wear everyone else out." The 10th closes with a warning that Utah would be subject to sanctions if it persists in ignoring 10th precedent.

Issues re: statute of limitations, duplicity, jury instructions and verdict form waived because not raised until post-trial

U.S. v. Madsen, 2015 WL 3814551 (6/19/15) (Ut.) (unpub'd) - Another in a long line of 10th preservation/waiver rulings. After the jury returned its verdict, but before the trial court accepted the verdict, the court asked for briefing. For the first time Dr. Madsen raised challenges related to the statute of limitations, the duplicitous indictment, the jury instructions and the verdict form. After 14-months of extensive briefing and multiple post-trial hearings, the court ruled against Dr. Madsen on the merits and accepted the jury's verdict. All that briefing and ruling didn't matter. Because Dr. Madsen did not raise the issues at a time when the court could have avoided the ostensible errors, he did not preserve his challenges. He only raised the issues when the court could only rectify errors it had already made. Of course, this means a motion for new trial would not preserve any issues that could have been raised before or during trial. To top it all off, every issue he raised on appeal didn't even qualify for plain error review. The issues were waived, the 10th rules. First, the statute of limitations is an affirmative defense that is waived if not asserted at trial. Second, a party who fails to raise objections to an indictment before trial waives any such objections. Dr. Madsen did not show good cause for his untimeliness to avoid that waiver. His pro se status got no sympathy from the 10th. Third, if a defendant does not timely challenge an indictment on duplicitous grounds, the defendant waives any challenge to a failure to use a special verdict form to avoid the duplicity problem.

Defendant's post-trial, presentence release on bond reversed

U.S. v. Hosier, 2015 WL 3814544 (6/19/15) (Kan.) (unpub'd) - The 10th overturns a presentence release order. Following the jury's child-porn guilty verdicts, the district court said; "Mr. Hosier, you've been compliant with your release conditions. So I'm going to keep you on bond until your sentence." The government asked to be heard. The court responded: "I know you're going to tell me detention is mandatory, but I'm not going to do that. You can appeal me if you want to." The government followed the court's suggestion. The 10th noted that release was not justified under 18 USC § 3143(a)(2)(A) because there was not a substantial likelihood of the granting of an acquittal or a new trial and the government was not going to recommend a non-prison sentence since there was a mandatory minimum of five years. The 10th held that the exceptional-reasons exception under 18 USC § 3145(c) didn't justify the release either because the court did not make an exceptional-reasons finding and compliance with release conditions terms does not by itself qualify as an exceptional reason.

Court affirms trial court's exclusion of late-disclosed government evidence

U.S. v. Yepa, 2015 WL 3757193 (6/17/15) (N.M.) (unpub'd) - The 10th affirms in a split decision the judge's exclusion of government evidence that was made part of an exhibit list almost 3 months past the deadline for the exchange of exhibit lists and a week before trial. The good news is the 10th was willing to approve a sanction imposed on the government. Of course, the logic of the decision could justify an exclusion of defense evidence as well. The 10th has affirmed such exclusions on several occasions. In this case, the excluded evidence was a recording of a 911 call purportedly from the victim during her sexual assault that resulted in her death. The day after the murder, the Jemez Pueblo Police Department ("JPPD") gave FBI Agent Bourgeois the CAD for the call. But the agent didn't consider it a priority because the CAD didn't give the victim's name. It just said it was from a drunk, belligerent woman calling from outside the pueblo [due to some cell tower anomaly]. The day after the murder Mr Adams told the JPPD he saw Mr. Yepa raping the victim. Mr. Adams said he took the victim's phone and later threw it away. He led a JPPD officer to where the phone was. The JPPD kept the phone in evidence in the file corresponding to Mr. Yepa's case. The agent knew Mr. Adams led the officers to where he threw the phone, but supposedly didn't know whether they found the phone. He never asked the JPPD if they had. Around a week after the murder, the agent asked for evidence dealing with Mr. Yepa's case, but he wasn't given the victim's phone or the officer's report about finding it. Meanwhile, Judge Armijo set May 15, 2013, as the deadline for the exchange of exhibit lists. In June, 2013, the prosecutor, and the agent retrieved from the 911 dispatch office, and listened to, the 911 call. The prosecutor asked the agent to see if the phone number on the 911 CAD was tied to the victim's. It was her number, but the agent didn't do what the prosecutor asked him to do and the prosecutor didn't follow up. On July 31, the agent and prosecutors learned by accident that the victim's cell phone had been found and was in the JPPD files. A week later, and one week before trial was scheduled, the government added the 911 recording to the exhibit list because the agent eventually found from the phone data that the victim had called 911 the night of her death.

The 10th applied the factors addressed in U.S. v. Wicker, 848 F.2d 1059 (10th Cir. 1988), a case in which our long-ago esteemed FPD colleague Peter Schoenburg obtained affirmance of exclusion of government expert evidence due to the tardy disclosure of the expert's drug report. First, the 10th agreed with the district court that, although the government did not act in bad faith, it did act negligently by not pursuing the phone and 911 recording evidence until accidentally coming upon it and then taking a week to reveal the phone's contents to the defense, one week before trial. Exclusion may be appropriate even without bad faith, the 10th says. Second, the 10th found the district court did not clearly err when it found the defense could not adequately prepare for trial as scheduled given the late designation of the recording. Third, even though a continuance would have cured the prejudice to the defense, the required 4-8 week continuance would have disrupted the court's schedule, inconvenienced the jurors who had already been summoned and kept Mr. Yepa in jail for more time before trial, implicating his speedy trial rights. The 10th says integrity and scheduling considerations alone may justify exclusion of otherwise admissible evidence. The 10th finds exclusion would not endanger a just adjudication given other evidence against Mr. Yepa. The 10th rejects the government's analogy to good-faith Fourth Amendment cases. In those cases, the point is to deter future misconduct, whereas in a discovery violation situation, the current misconduct could be dealt with, the 10th reasons.

Tuesday, July 21, 2015

Good faith exception applies to stop based on flawed database information

U.S. v. Esquivel-Rios, 786 F.3d 1299 (5/27/15) (Kan.) (Published) - A bad good-faith decision for the defense. A Kansas trooper called into dispatch about a Colorado temporary 30-day registration tag. The dispatcher said there was "no return," explaining that "Colorado temp tags usually don't return." In fact, at the time, information on those tags was never available from the Colorado database the dispatcher searched. The database did not notify a searcher that it did not contain such information. Neither the dispatcher nor the trooper were informed in training in that regard. The trooper didn't believe the Colorado temp tag information was unavailable. He thought he had gotten such information before, even though he hadn't. Assuming there was a constitutional violation, the 10th holds good faith prevents exclusion. The 10th analogizes this case to Herring v. U.S., 555 U.S. 135 92009), where good faith saved reliance on a database that mistakenly indicated an outstanding warrant. The 10th finds it was objectively reasonable for the trooper to rely on the "no return" response from the database. The dispatcher's warning was "equivocal and anecdotal." In any event, the 10th decides it cannot exclude evidence just for "marginal" deterrence. The officer must be reckless or grossly negligent before exclusion happens. There's no misconduct to deter if the officer was not "on notice the entire database was unreliable." The 10th conceded it might have come to a different conclusion if the case involved a Colorado officer who was aware of the database's incompleteness. And there was no recurring or systemic negligence by the database caretakers. Missing some information doesn't meet that standard. If the regime "routinely lead to false arrests due to grossly mismanaged databases," then the 10th might consider exclusion.

Unpublished decisions

U.S. v. Lunnin, 2015 WL 3429360 (5/29/15) (Kan.) (unpub'd) - The district court erred when it rejected Mr. Lunnin's request for a minimal-role adjustment on the grounds that he could not receive such a reduction because he was held accountable under the guidelines only for the drug quantity he was personally involved with. That reasoning directly conflicts with § 3B1.2, cmt. n. 3(A). But the error is harmless because Mr. Lunnin could not possibly qualify for a reduction due to his loaning of $22,500 to a co-conspirator for the drug business, expecting a $10,000 profit. This showed he understood the scope of the enterprise. Troublingly, the 10th holds that, by asking for a departure only to Level 32, Mr. Lunnin must have recognized the drug quantity required a 10-year mandatory minimum sentence. So he waived any challenge to the district court's quantity findings that resulted in a 10-year mandatory minimum.

U.S. v. Ortiz, 2015 WL 3407443 (5/28/15) (Kan.) (unpub'd) - The 10th concludes that any two-offense-level guideline error would be harmless because the district court imposed a sentence that was 50 % of the low-end of the possibly wrong guideline range.

Florentino-Francisco v. Lynch, 2015 WL 3389987 (5/27/15) (unpub'd) - Solicitation of prostitution is a crime involving moral turpitude ("CIMT") because prostitution is a CIMT. You can't have the prostitute without the john. The 10th rejects the alien's contention that societal views have changed about the morality of prostitution. It's still "inherently wrong," the 10th responds.

U.S. v. Garcia-Chihuahua, 2015 WL 3372149 (5/26/15) (Kan.) (unpub'd) - The 10th finds a due-process, plea-challenge argument preserved where Mr. Garcia-Chihuahua apparently did not mention the phrase "due process," but did argue he wasn't fully apprised of the consequences of his guilty plea. Unfortunately, Mr. G-C challenged his 2013 guilty plea, which involved an appeal waiver, in an appeal of his supervised-release-revocation relating to a 2008 case. The 10th didn't think he could do that. But it did mention he could have challenged his plea in an appeal of the case with the appeal waiver because an unknowing plea would undermine the appeal waiver as well as the plea.

Vreeland v. Schwartz
, 2015 WL 3372139 (5/26/15) (Col.) (unpub'd) - The 10th reverses dismissal of a prisoner complaint. Mr. Vreeland sufficiently alleged retaliation for exercising his protected rights and properly joined a bunch of prison employee defendants. Mr. Vreeland alleged he was denied and fired from inmate job assignments and his right to grieve was denied or impeded due to his filing of a complaint against the prison legal assistant who opened his private mail. It was enough that the prison employees' conduct would "chill a person of ordinary firmness," As long as the ordinary person would be chilled, it didn't matter that Mr. Vreeland was more determined than most and wasn't chilled.

"Gang expert's" testimony was erroneously admitted, but held to be harmless error

United States v. Garcia & Ramirez, 2015 WL 4232199 (7/14/2015) (KS): What are the odds that two young men sentenced to life plus many decades will get relief on appeal? Not good when the opinion starts out like this; “Garcia and Ramirez were convicted of conspiring with their criminal gang of violating the RICO statute.” That does not mean the panel did not find error. It did. It ruled that the government’s expert gang witness did not apply his “expertise” to the facts of the case and instead just repeated what the gang members had told him. His testimony was hearsay and arguably violated the Confrontation Clause. But the panel found the error harmless because numerous witness had also testified to the facts he was repeating. However, this is an opinion one might consider reading when trying to exclude the government’s law enforcement “experts.” It appears that the government uses these experts merely to regurgitate the statements of those they have interrogated. These statements then have an aura of infallibility and culpability when they come out of an “expert’s” mouth. This case and United States v. Mejia, 545 F.3d 179 (2d Cir.2008), which the court relied on here, can help you exclude such testimony. The panel also found the government did not violate Brady because the undisclosed evidence of a co-defendant’s 2 other prior meetings with agents was not material; (2) the government did not violate Napue, 360 U.S. 264, because the witness’s omission of these meetings was not intentional; (3) the challenge to the interstate-commerce jury instruction on the RICO charge failed because it is based on the false premise that there was no evidence that the RICO enterprise engaged in economic activity; (4) the challenge to the VICAR convictions failed because it is based on the same false premise.

ACCA sentence remanded in light of Johnson decision

U.S. v. Snyder, 2016 WL4394324 (7/20/15)(Published) - Mr. Snyder's appeal of his Armed Career Criminal Act sentence is granted under Johnson in light of the unconstitutionality of the Act's residual clause. The Court rejects the government's argument that Snyder lacked standing because his conviction for eluding a police officer would be a violent felony under any interpretation of the residual clause. The court affirms the district court's denial of Snyder's motion to suppress the search of his car that resulted in discovery of the gun because the officer smelled burnt marijuana emanating from the inside of the car and that alone established probable cause that justified the search.

Wednesday, July 08, 2015

Jury Instructions Were Erroneous, But Defendant Gets No Relief from Mail Fraud, Forced Labor Convictions

U.S. v. Kalu, 2015 WL 3939007 (10th Cir. 6/29/15) (CO) - the district court committed two jury instruction errors in this mail fraud and forced labor case. The defendant was charged with fraudulent misrepresentations re: employment and salaries to foreign national nurses who were forced to work in CO nursing homes. Although the district court plainly erred by failing to instruct the jury that specific intent to defraud is an element of mail fraud under 18 U.S.C. § 1341, there was no reasonable probability that the outcome would have differed with a correct instruction, so Mr. Kalu gets no relief. Same result re: the district court's failure to instruct the jury with the knowledge or reckless disregard standard that is the statutory mens rea for encouraging or inducing an alien under 8 U.S.C. § 1324. The district court plainly erred by instructing the jury on a negligence standard, but there was no reasonable probability that the error affected the trial outcome. The evidence amply showed that Mr. Kalu had actual knowledge that the foreign nationals' entry into or residence in the US would violate the law. And the district court did not impermissibly broaden the indictment on the mail fraud charge, which alleged Mr. Kalu "devised and intended to devise a scheme" to defraud; the jury was instructed that it must find that Mr. Kalu "knowingly participated in a scheme or plan to obtain money or property from another person through false representation." Mr. Kalu did not show any possibility that he was convicted on a charge other than the one alleged in the indictment. Also, the jury was properly instructed re: threat of serious harm under the forced labor statute, which prohibits knowingly providing or obtaining labor or services by a variety of means, including "serious harm or threats of serious harm." The instruction included harm that "causes," but does not "compel" a person to provide labor. The trial evidence demonstrated that Mr. Kalu repeatedly threatened the foreign nationals with legal action, visa revocations, deportation, financial ruin, and physical harm. Finally, the district court did not abuse its discretion by calculating a restitution award based on the salaries Mr. Kalu promised the nurses in the three year job offer documented in the visa petitions.

Illinois Attempted Murder Conviction Held to Be Crime of Violence in Reentry Case

U.S. v. Castro-Gomez, 2015 WL 4072122 (10th Cir. 7/6/15) (NM) - affirmance of district court ruling that Mr. Castro-Gomez's prior Illinois conviction for attempted murder was a crime of violence triggering the 16-level enhancement under USSG § 2L1.2(b)(1)(A)(ii). It did not matter that the Illinois statutory definition of murder was broader than its uniform generic counterpart; it defined murder as killing an individual with the intent to kill or do great bodily harm or with the knowledge that one's actions will cause death. An Illinois conviction for attempt to commit murder constituted a crime of violence because it required the specific intent to commit murder. Applying the language of the attempt statute thus cured the overbroad intent requirement in the murder statute that permitted conviction upon proof only of intent to do great bodily harm.

Good Faith Exception For Once Fails to Save Search Warrant

U.S. v. Cordova, 2015 WL 4072123 (10th Cir. 7/6/15) (Okla.) - it was unreasonable for officers to rely on the search warrant affidavit in this case because it contained so few facts implicating either Mr. Cordova or his current residence. The Tenth reverses the district court's ruling denying the motion to suppress, which was based on the good faith exception. The affidavit indicated nothing more than that a high-volume drug delivery was to have been made two years prior to execution of the warrant to a vehicle parked in front of the home where Cordova lived at that time and that an individual who was a party to that drug deal was at Cordova's current residence on one occasion four months prior to execution of the warrant. It should have been clear to officers that this info did not establish probable cause---it was "so removed from implicating Cordova or his current residence that it amounts to nothing more than a hunch."

Officer Failed to Show Sufficient Grounds to Justify Warrantless Entry; Summary Judgment Reversed

McInerney v. King, 2015 WL3953686 (6/30/2015) (CO): A 1983 civil action in which the panel reversed the district court’s summary judgment for the officer. This case is interesting because the panel ruled that the officer had not shown there were objectively reasonable grounds of an emergency to justify his entry into a woman’s home. When the officer went to serve a summons on McInerney, numerous windows were open. The front screen door was open and the door behind it was open six inches. The garage door also was open and belongings were strewn about inside. The officer did not see any broken glass. He didn’t go in the house but called a sheriff’s deputy to look at the house with him. Twenty six minutes after the officer had gotten there, he and the deputy went into the home. Neither official had tried calling the house or McInerney’s cell phone. The officer argued that a reasonable officer could have believed there was a need to assure the safety of an individual in the residence including McInerney’s 11 year old daughter. The panel wasn’t persuaded because the officer “fail[ed] to explain how a reasonable person would reach that conclusion.” It said the following did not demonstrate an immediate need to protect the officers’ lives or others from serious injury or threatened injury: McInerney’s ex told the officer that she had a long history of drug and alcohol abuse; three years earlier she had overdosed and was hospitalized; she could be erratic, aggressive and violent; she had had a restraining order against her because she was violent towards her children; she had several guns in the house and their 11 year old daughter lived with her part time. The court dismissed these allegations because the officer was not responding to an emergency call; he did not hear or witness any disturbance in the house; there had been no report of gun fire or any threat involving a gun; the officer had no information that McInerney was incapacitated when he visited the home; and there was no evidence of forced entry or theft. The court also noted that the officer first mentioned these allegations in his motion for summary judgment even though he could have revealed them in earlier pleadings.

Claim that Prohibition on Double Jeopardy Was Violated Rejected

Owens v. Trammell, 2015 WL 4081123 (7/7/2015) (OK): A tip of the hat to our Colorado FPD colleague, Howard Pincus. He did a yeoman’s work in forging a very sophisticated double jeopardy - collateral estoppel argument from difficult facts in a state habeas case. Unfortunately he lost. Owens presented three arguments. First, he said that the Oklahoma courts did not use the correct analysis to decide whether the verdicts from Owen’s first trial were inconsistent and they were wrong to treat the verdicts as inconsistent. After reviewing precedent for ten pages, the panel decided Owens waived this argument. It also ruled that no clearly established Supreme Court law established how to resolve the unusual circumstances here. Next, Owens argued the Oklahoma courts unreasonably extended the Supreme Court’s collateral estoppel analysis to his case or alternatively unreasonably applied that analysis in violation of Ashe v. Swenson, 397 U.S. 436 (1970). Owens lost this argument because the Powell truly inconsistent verdict test precluded an inquiry into why and on what basis the jury acquitted Owens. [US v. Powell, 469 U.S. 57 (1984)]. Given the lower courts’ finding that the verdicts in Owens’s first trial were inconsistent, it was not objectively unreasonable for them to find the inconsistency precluded Owens from establishing - through collateral estoppel - the preclusive effect of the acquittal. Lastly, Owen’s second trial did not violate the Double Jeopardy Clause because given the inconsistencies of the verdicts in the first trial, continuing jeopardy permitted Owens to be retried on the felony murder charge.

Court rejects arguments regarding jury instructions and tainted jury, but reverses obstruction enhancement

U.S. v. Kupfer, 2015 WL 4081108 (7/7/2015) (NM): Kupfer was convicted of failing to report $790k in gross income. At trial she admitted that she had not reported this income but denied that her under-reporting was willful. On appeal she raised three issues. First, she said that the district court should have instructed the jury that her behavior was not “willful” if it was merely negligent, inadvertent, accidental, mistaken, or reckless. The panel ruled the court’s instruction accurately defined “willful” and it did not have to include the terms proposed by Kupfer. Second, Kupfer argued that the district court should have held a hearing when after trial, in an affidavit, a juror told the court another juror had said Kupfer had been on the news and that hers was a big, scandalous case with other indictments. The panel rejected Kupfer’s argument. It said she had not requested a hearing in the district court. Also, the court could reasonably have concluded that a hearing would not have provided additional relevant information. Besides Fed.R.Evid. 606(b) prohibits juror testimony on the effect of extraneous information on the jury’s deliberations. And even if the juror’s statements impacted deliberations, there was no prejudice because the evidence against Kupfer was overwhelming. Finally, the panel agreed with the parties that the court should not have applied an obstruction of justice enhancement. The panel noted that Kupfer had simply failed to speak up and disclose the unreported income while authorities investigated. Her omission did not come within USSG § 3C1.1.

Monday, June 22, 2015

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

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

Condition Restricting Computer Use Upheld

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

Position Announcement - Investigator, Albuquerque FPD Office

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

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

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

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

Position subject to availability of funding.

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

Stephen P. McCue, Federal Public Defender

No phone calls please.

*The Federal Public Defender is an Equal Opportunity Employer*

Monday, June 15, 2015

eVouchers on the Horizon

The Tenth Circuit today announced:

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

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

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

In the coming weeks, you will receive additional emails regarding the exact date for implementation of eVoucher; your eVoucher account information; and eVoucher reference materials and training opportunities. If you are interested in learning more about eVoucher right now, some introductory materials have been posted to the Tenth Circuit website: http://www.ca10.uscourts.gov/cja/evoucher.

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

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

Tuesday, June 09, 2015

Restitution reversed, but loss calculation affirmed

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

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