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.

10th Remands for Evidentiary Hearing for Capital Habeas Petitioner

U.S. v. Barrett, 2015 WL 4926800 (8/19/15) (Okl.) (Published) - After the state failed to get a death penalty in state court, federal Oklahoma prosecutors took up the task and managed to get the go-ahead from a jury to kill Mr. Barrett. But the 10th now, at least temporarily, puts a damper proceedings remanding for an evidentiary hearing on ineffective assistance for failing to present mitigating evidence. Counsel did not present testimony in any significant detail regarding Mr. Barrett's mental health issues or troubled background. Counsel did little investigation in those regards. They consulted a psychologist only about a continuing-threat, risk assessment They didn't even ask for help from available mitigating services or ask the family about mental health issues - a hurried 5-minute, pre-testimony discussion was it. If they saw no red flags, the 10th says, that was because they never asked the right questions. Mr. Barrett's initial attorneys told counsel they should investigate mental health issues. Available records showed Mr. Barrett was delayed as an infant, struggled in school, attempted suicide, was committed to a hospital for mental health issues, and years later spent 3 days in a hospital after he complained he was "losing his mind." He had been diagnosed with substance abuse, organic affective disorder, and paranoia, his family had a history of depression and mental illness and a psychologist said there was a need to look into organic brain damage. The 10th rejects the government's excuses for counsel's neglect. First, Mr. Barrett never gave an unequivocal command to refrain from investigating or presenting his background and mental health history. At worst he was ambivalent on the matter. At times, he deferred to counsel's judgment and cooperated. Second, counsel couldn't advise him properly on the wisdom of avoiding the topic because they were uninformed. The 10th finds enough evidence of prejudice to warrant an evidentiary hearing. There was a long history of family alcoholism, abuse, and mental health problems. Mr. Barrett had a largely absent father, who, when he showed up, drank and fought with his mom and others and punched him. His mom physically and emotionally abused him and drank constantly. All this increased the risk for mental disorders and chemical dependency. Besides the evidence in the records described above, Mr. Barrett suffered head trauma and used drugs, alcohol and tobacco beginning at age 11, Psychs determined his ability to function was significantly impaired, he was- bipolar and had PTSD and his history suggested he had organic brain damage significantly impairing his executive function. All these problems would be exacerbated by stressful situations, such as officers raiding his home. The 10th notes mental impairments, especially brain damage, garner the most sympathy from jurors. The government has evidence calling in question Mr. Barrett's mental health claims and could stress that any mental health problems made Mr. Barrett more dangerous. But the 10th feels like all that should be sorted out in an evidentiary hearing on remand. The Oklahoma death machine is stalled for now.

Mr. Barrett was prosecuted for shooting and killing a state trooper during a police raid on Mr. Barrett's home, which contained a significant amount of drug stuff. Mr. Barrett defended on the grounds that he didn't know it was the police who were attacking him. What happened at the 2 state trials played a significant role in the 10th's rejection of ineffective assistance claims regarding the trial. The first trial ended in a hung jury. The second trial resulted in an acquittal of discharging a firearm with the intent to kill and convictions of lesser offenses. The convictions lead to a mere 30-year prison term. Mr. Barrett was convicted in federal court of (1) causing death to further a drug-trafficking offense, § 924(c)(1)(A) & (j); (2) causing death while using a firearm to further a crime of violence, § 924(c); and (3) intentionally killing the trooper during a federal drug offense, while the trooper was engaged in official duties, 21 U.S.C. § 848(e)(1)(B). The jury recommended life for the first two and death for the third. Mr. Barrett contended his counsel should have chosen a different police-tactic expert to establish the raid was so ill-conceived it prevented Mr. Barrett from knowing it was law enforcement officers who were attacking him. Counsel chose to use an expert who had testified for the state in the state trials. The expert, who was hostile to the defense, to Mr. Barrett's detriment, changed his testimony from what he testified to in state court. The 10th finds choosing the defense expert was a quintessential trial strategy that was reasonable because that expert's testimony helped to get an acquittal in state court. In state court, his testimony was a "debacle" for the state. It was reasonable for counsel to believe the expert's testimony, "a known commodity," would again devastate the government's case. Even though funding was approved to present a different, more defense-friendly expert, he might not have stood up to cross. Similarly, the 10th says, it was okay to adopt the same crime-scene reconstruction strategy as Mr. Barrett adopted in state court: cross the state's expert and not call a defense expert. It was reasonable to conclude the same strategy would work this time as well, even though counsel never consulted an expert to help with cross and never read the transcript of the state's expert's second trial testimony. The 10th concedes that consultation with an expert for cross-preparation or calling a rebuttal expert "may have been a better choice" But it could not say counsel's different choice was deficient.

The 10th acknowledges that perhaps counsel should have sought a self-defense instruction which may have been warranted, but finds no prejudice. The 10th reasons: the jury did find beyond a reasonable doubt that a reasonable person would know the person he killed was a law-enforcement officer; so it was "exceedingly unlikely" the jury could have had a reasonable doubt he needed to use deadly force to defend himself; he had "no reason to believe" the officers came to his home to kill him. The 10th also rules Mr. Barrett did not show a mental health expert could have testified he was incapable of forming the necessary intent to commit the crimes. So no prejudice for not calling a mental health expert in the guilt phase. And § 924(c) did not require Mr. Barrett to be manufacturing or distributing drugs at the time of the shooting, so counsel was not deficient for failing to request an instruction to that effect, the 10th holds. Although the 10th basically admits counsel should have requested and received a drug-addicted witness instruction, that deficiency was harmless, given the general witness-credibility instruction and counsel's addiction cross on that matter of the 7 drug-addicted witnesses.

The 10th holds that appellate counsel was not deficient for failing to raise as an issue the trial court's refusal to instruct on lesser-included offenses. The first two charges are like felony murder. So they only required the intent required to commit the underlying felony. So neither second-degree murder nor voluntary manslaughter with an entirely different mens rea requirement could be a lesser-included offense And there is no federal voluntary-manslaughter offense whose elements are a subset of § 848(e)(1)(B). 18 U.S.C. § 1112(b) won't do because it requires the offense occur within special maritime or territorial jurisdiction of the U.S., which was not the case here. Beck v. Alabama requires the giving of a lesser-included offense when it's factually and legally warranted, but it doesn't require making up a lesser-included offense that isn't already there.

Convictions for Tax Evasion, Stealing Government Property Affirmed, But Court Remands for Resentencing

U.S. v. Kupfer, 2015 WL 4926885 (8/19/15) (N.M.) (Published) - The 10th affirms convictions for tax evasion and stealing government property, but reverses the sentence due to errors in applying USSG § 2C1.1, instead of § 2B1.1 and imposing an obstruction of justice enhancement. The 10th rules the district court erred when it applied USSG § 2C1.1, on the grounds that the evidence at trial indicated there was a conspiracy to defraud involving state officials. The 2001 Sentencing Commission amendment 591 and § 1B1.2 make clear that only the offense of conviction may be considered, not the actual conduct, in deciding which guideline to use. Here Mr. Kupfer was convicted of stealing government property under 18 U.S.C. § 641. The statutory index sends Mr. Kupfer's offense to § 2B1.1. The conspiracy charge doesn't change that conclusion. § 2X1.1 calls for referring to the underlying substantive offense that was the object of the conspiracy. Accordingly, the guideline range should have been 78-97, not 121-151 months. And, as the government conceded, the 10th finds the district court also erred by imposing an obstruction-of-justice adjustment based on Mr. Kupfer's failure to reveal his under-reporting of income. That adjustment cannot be imposed for the failure to disclose one's own crime.

The 10th holds, consistent with the tax-evasion decision in Mr Kupfer's wife's case, that it was not error to refuse to instruct that under-reporting of taxes is not willful if it is merely negligent and it was okay not to hold a needless evidentiary hearing regarding a juror's comments about other charges the Kupfers were facing. The 10th holds evidence about an anti-smoking campaign was admissible intrinsic, and not 404(b), evidence where Mr. Kupfer was accused of getting paid too much for work he did on a voter-awareness campaign. The government argued that a consultant on the anti-smoking and voter-awareness campaigns paid kickbacks to Mr. Kupfer through excessive payments for work done on the voter-awareness campaign as payment for Mr. Kupfer getting more money for the consultant on the anti-smoking campaign through his and his wife's influence. The evidence showed that within several months of getting increases in the anti-smoking campaign, the consultant paid Mr. Kupfer $ 740,000 for a short training video for the voter-awareness campaign [I bet it was a really good video]. This was enough for the jury to draw a connection between the two distinct campaigns. It was also enough to tie in Mr. Kupfer, not just his wife. Both Kupfers had strong influence with the appropriate agency. The anti-smoking-campaign evidence was therefore highly probative. Meanwhile, any prejudice was not unfair, the 10th says, making the evidence okay under Rule 403. Admission of evidence of an elder-abuse contract was also okay, the 10th holds. It showed the consultant's normal billing rate for a legitimate media contract. Rule 404(b) played no role because the evidence didn't concern character. Minimal danger of prejudice arose. So it was okay under Rule 403. And, anyway, any error was harmless. It played a minor role involving a total of 5 questions. There was no mention of it in closing.

Unpublished Decisions

Cordero v. Froats, 2015 WL 5147691 (9/2/15) (N.M.) (unpub'd) - The 10th lets stand denial of summary judgment to the officers and the city of Las Cruces, NM. The estate for Mr. Montes presented statements of witnesses who say officers shot Mr. Montes while he was handcuffed, unarmed and fleeing. The officers quite reasonably conceded that, if the witnesses were accurate, they would not be entitled to qualified immunity. But they argued audio and video recordings and physical evidence totally undermined those witnesses and show Mr. Montes fired a handgun at the officers before they returned fire. The 10th acknowledges the evidence strongly supports the officers' version. But, the 10th rules, that evidence doesn't "blatantly contradict" the plaintiff's witnesses. The video does not clearly show Mr. Montes holding a gun. So the 10th says summary judgment is not appropriate. It should be up to a jury to decide.

Sweets v. Martin, 2015 WL 5106319 (9/1/15) (Wyo.
) (unpub'd) - The 10th concludes Mr. Sweets' notice of appeal was untimely because he did not allege that he used the prison's legal mail system or such a system was not available. As a consequence, the prisoner-mail-box rule does not apply. The 10th considers the notice of appeal to have been filed when it got to the court, which was after the deadline, not when it was mailed, which was before the deadline.

Allen v. Falk, 2015 WL 5090887 (8/31/15) (Col.) (unpub'd
) - It was okay for the prison to require sex-offender prisoners to submit to a polygraph and admit their full sexual history as part of sex-offender treatment, without regard for their Fifth Amendment stake in avoiding self-incrimination. Restrictions on a prisoners' constitutional rights are fine as long as they are reasonably related to legitimate penological interests. The polygraph requirements are so related, says the 10th.

Davis v. McCollum, 2015 WL 5011710 (8/25/15) (Okl.)
(unpub'd) - The 10th denies habeas relief sought under Miller v. Alabama, 132 S. Ct. 2455 (2012). The 10th says, while Miller prohibited mandatory life without parole (LWOP) for juveniles, it has nothing to say, at least in the § 2254 context, about non-mandatory LWOP sentencing schemes. The 10th rejects Mr. Davis's attempt to extend Miller to impose certain requirements to consider the juvenile's youth in determining the sentence. Under AEDPA's stringent, relief-preclusion standards, if you have to extend a Supreme Court case's principles to a different circumstance you're out of luck.

Sheriff Entitled to Qualified Immunity in Personal Capacity in Civil Rights Suit Where Inmate Committed Suicide

Cox v. Glanz, 2015 WL 5210607 (9/8/15) (Okl.) (Published) - The 10th reverses a denial of summary judgment to the sheriff in his individual capacity. The sheriff was in charge of a jail where Mr. Jernigan committed suicide. The 10th rules the sheriff was entitled to qualified immunity because there was no clearly established law in 2009 that required adequate inmate screening for suicide and no one at the jail had knowledge that Mr. Jernigan presented a substantial risk of suicide When Mr. Jernigan entered the jail he denied he was currently thinking about committing suicide. But he did indicate on a questionnaire that he had hallucinations, was paranoid- schiizophrenic, had been nervous or depressed for a few weeks and he was taking medication for an emotional or mental health problem. According to the form, his answers warranted further evaluation. Instead he was simply approved for general population. The next day Mr. Jernigan filed a medical request to "speak with someone about problems." Two days later a health care worker tried to see Mr. Jernigan but didn't contact him because he had been moved to a different cellblock. Within an hour and 25 minutes later, Mr. Jernigan was found hanging from a makeshift noose. The Oklahoma State Department of Health found the jail had violated three jail standards in how they dealt with Mr. Jernigan. In particular, people with mental health problems were supposed to be segregated and watched more carefully than people in general population. Nonetheless, no personal liability. Given the lack of a clearly-established suicide-screening requirement, the 10th says the plaintiff had to show the sheriff's knowledge of a suicide risk with respect to this particular inmate. The 10th noted an exception to this specific-inmate requirement when it came to the risk of sexual victimization. The 10th finds no knowledge of a substantial suicide risk because Mr. Jernigan acted normally during intake. The 10th concedes that perhaps there would have been such knowledge had Mr. Jernigan been more specific about his paranoid-schizophrenic symptoms. But he wasn't forthcoming enough. And Mr. Jernigan's "vague" medical request about needing to speak about "problems" didn't give notice of a substantial suicide risk. Suicide was just one of several possible medical problems. The suit against the sheriff in his official capacity still goes forward because qualified immunity was not available for that status and there was no jurisdiction for an interlocutory appeal on the matter of the sheriff's official-capacity liability.
U.S. v. McGee, 2015 WL 5203846 (9/8/15) (Okl.) (unpub'd) - The 10th applies the certificate of appealability requirements to preclude relief despite California's change in classification of Mr. McGee's offense to a misdemeanor. Mr. McGee was given a life sentence under 21 U.S.C. § 841(b)(1)(A) due to two prior state-court convictions for felony drug offenses. Due to a recent California initiative, the state court amended nunc pro tunc the judgment on one of his priors to be a misdemeanor, rather than a felony, conviction. Mr. McGee filed a § 2255, contending his life sentence was no longer mandatory with only one felony drug prior. The district court dismissed the § 2255 on the ground that it was a successive motion requiring 10th authorization. The 10th indicates the motion should probably not be considered successive because Mr. McGee could not have raised the point he raises now when he filed his first motion. But the 10th says it didn't have jurisdiction because it could not grant a certificate of appealability. That certificate requires the arguable denial of a constitutional right. According to the 10th, Mr. McGee was only relying on a statutory interpretation. Appeal dismissed. It's likely Mr. McGee was entitled to relief in district court, but because the district court erred when it found the motion to be successive, Mr. McGee has no recourse.

Prisoner Gets Chance to Show He Timely Mailed His Petition

U.S. v. Spence, 2015 WL 5235790 (9/9/15) (Okl.) (unpub'd) - The 10th shows some leniency regarding proof of mailing. In this case, the prisoner's § 2255 motion arrived at the district court 3 days after the one-year statute of limitations expired. He signed a preprinted § 2255 form which provided for a declaration that he placed his motion "in the prison mailing system" on a certain date. The district court ruled Mr. Spence could not take advantage of the prisoner-mailbox rule because he hadn't said he used the prison's legal mail system or that such a system was unavailable. The government moved to dismiss on timeliness grounds. Mr. Spence responded that he used the prison's legal mail system. The district court nonetheless found Mr. Spence's assertions insufficient. The 10th agrees that the district court was technically correct because Mr. Spence had not made his prison-legal-mail statements under penalty of perjury. But the 10th says the government's motion did not give Mr. Spence fair notice of the under-penalty-of-perjury requirement. Mr. Spence could hardly be blamed for using a form that other circuits find sufficient to invoke the prisoner mailbox rule. And he made the requisite declaration in his response. So the 10th remands with instructions to allow Mr. Spence to provide the necessary allegations in the proper form to render his petition timely.

Apprendi Does Not Apply to Restitution

U.S. v. Burns, 2015 WL 5256623 (9/30/15) (Wyo.) (Published) - The 10th affirms Mr. Burns' sentence and restitution. The 10th holds Apprendi has no application to restitution. The 10th, despite 10th precedent to the contrary, assumes, without deciding, that restitution may serve punitive purposes, given the Supreme Court's recent indication to that effect in Paroline v. U.S., 134 S. Ct. 1710, 1726 (2014). But there is no statutory maximum restitution. The district court has no authority to impose restitution greater than the victim's losses. Apprendi can't apply when there is no maximum, the 10th concludes, Also, the 10th finds sufficient evidence to support the district court's loss amount calculation. Mr. Burns disputed that he stole from the mail 5 of the 47 items the probation office said he had stolen. That Mr. Burns admitted to stealing mail during the period the 5 items were sent to his post office and not received by the intended recipients was enough. Mr. Burns' suggestion of other possibilities as to how those 5 items could have gone missing didn't undermine the district court's finding.

Wednesday, September 30, 2015

Immigration-related convictions, lengthy upward departure affirmed

US v. Worku, Docket No. 14-1218 (10th Cir. 9/1/15): The Court affirms the defendant's convictions and sentence for immigration-related convictions and aggravated identity theft. This is also a good case to review for the standards of determining whether photo arrays are unduly suggestive and thus violate Due Process rights.

Mr. Worku, an Ethiopian, entered the US years ago after assuming the identity of Mr. Temanu, an Eritrean. Mr. Worku eventually became a US citizen. Immigration authorities learned Mr. Worku was using a false identity and also suspected that he had tortured Ethiopian prisoners in the 1970s. After a trial, he was convicted of three crimes: 1)unlawful procurement of citizenship or naturalization; 2) fraud and misuse of visas, permits and other documents; and 3) aggravated identity theft. Mr. Work contended that his convictions under 18 USC 1425(a) and (b), in count 1, and 18 USC 1546(a), in count 2, violated the Double Jeopardy Clause. He was in plain-errorville. The Court shortcut the pesky double jeopardy analysis by assuming that Mr. Worku satisfied the first three prongs of the plain error test, and jumped straight to the prejudice prong. Mr. Worku could not prove prejudice because in the Court's view, the evidence of guilt would have been overwhelming even if the charges in the two counts had been more clearly identified with different acts. He had lied about his name on two different documents, the naturalization form and on the application for permanent residence. He also argued (again, plain error) that he shouldn't have been convicted of aggravated identity theft because Mr. Temanu's children gave Mr. Worku permission to use their father's identity. Mr. Worku did not allege that Mr. Temanu himself gave permission for Mr. Worku to use his identity. Thus, even if there was error, it was not obvious.

Mr. Worku was sentenced to 22 years, in part because the district court found that he immigrated to the US to conceal his involvement in torture. He contended the sentence was procedurally unreasonable because the record did not support that conclusion. The Court disagreed. There were three facts in the record to support the conclusion: 1. The jury found that Mr. Worku persecuted others because of race, etc. and lied about committing those crimes; 2. Mr. Worku said he had never felt at ease in Kenya because he feared being kidnapped and returned to Ethiopia; and 3. the Berhe children hired a broker who said Mr. Worku was to pay part of the broker's fee. These facts created a plausible inference Mr. Worku wanted to come to the US to avoid punishment for his crimes.

Mr. Worku also argued that his due process rights were violated because the federal agents showed photo arrays to former inmates of an Ethiopian prison camp, and five of them identified Mr. Worku as a torturer. He argued the arrays were unduly suggestive. The Court discussed the alleged problems with the 6- and 12-photo arrays, and concluded none were overly suggestive. Even if the arrays were overly suggestive, they were sufficiently reliable under the totality of the circumstances. Even though the witnesses had last seen Mr. Worku more than 30 years ago, the circumstances under which they saw him (torturing them) were also extraordinary.

The district court's upward variance from the guideline sentence of 3 years to 22 years was not an abuse of discretion. The district court concluded the guidelines range was too low because of the horrific nature of Mr. Worku's violations of human rights in Ethiopia and his lying about his idenitity to avoid punishment.

Court's Power to Alter Judgments Limited

US v. Spaulding, Docket No. 13-1376 (10th Cir. 9/1/15): 18 USC 3231, which grants district courts original jurisdiction over criminal cases, does not, standing alone, confer upon the district court jurisdiction to set aside a previously imposed criminal judgment that includes a term of imprisonment. Rather, the district court has jurisdiction to alter such judgments only to the extent "expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." 18 USC 3582(c)(1)(B). The cause is remanded for reentry of the original judgment.

Career Offender Guideline Residual Clause is Unconstitutionally Vague

US v. Goodwin, Docket No. 13-1466 (10th Cir. 9/4/15): Mr. Goodwin's prior Colorado conviction for criminal trespass is not a crime of violence under USSG 4B1.2(a)(2). The residual clause of the career-offender guideline is void for vagueness following Johnson. The government abandoned its position that the crime was a crime of violence under that clause and concedes that enhancing Mr. Goodwin's sentence was plain error.
Ruppert v. New Mexico Department of Corrections (DOC) (, 2015 WL 4174966 (7/13/15) (N.M.) (unpub'd) - The 10th rejects Mr. Ruppert's claim that the N.M. Department Of Corredtions and the company operating its facilities "were using crime to produce a commodity to feed the private prison sector." The 10th finds no evidence "the feeding of the prison sector" extended Mr. Ruppert's confinement. The 10th also rejects Mr. Ruppert's contention that prison officials processed a high rate of disciplinary misconduct reports to deprive inmates of rehabilitation and enhance their sentences. The 10th finds the rehabilitation statute, N.M. Stat. Ann. § 33-8-3, does not limit discretion so as to make rehabilitation a protected due process right.
Mathison v. U.S., 2015 WL 4296867 (7/16/15) (Col.) (unpb'd) - Mr. Mathison could not obtain relief for hearing loss he suffered soon after the Florence prison's public address system volume increased. The cause of the hearing loss was not plainly identifiable by a layperson. So he could not prove causation without an expert, which he didn't have. The 10th does not make any suggestions as to how an indigent prisoner like Mr. Mathison could possibly obtain an expert.
U.S. v. Malik, 2015 WL 4258271 (7/15/15) (Col.) (unpub'd) - The district court committed plain error when it imposed a longer two-year, rather than a one-year, supervised release term because it erroneously believed it could not later extend the term if Mr. Malik screwed up. The plain language of 18 U.S.C. § 3583(e)(2) allows an extension. The 10th agrees with the government's concession that the 3rd & 4th prongs of the plain error reversal test apply because there was a strong possibility he would have received a one-year, rather than a two-year, supervised-release term if the district court knew the term could later be extended. This was so because the court gave its incorrect view of the law as the biggest reason for the length of the term.
U.S. v. Mackay, 2015 WL 4269608 (7/15/15) (Ut.) (unpub'd) - With the case in an unfavorable procedural posture, the 10th affirms the vacation of two counts of distributing a controlled substance resulting in death, 21 U.S.C. § 841(b)(1)(E)(i), due to jury instructions that violated Burrage v. U.S., 134 S. Ct. 881 (2014). Initially the 10th affirmed Mr. Mackay's convictions, but remanded due to unrelated sentencing errors. While the case was on remand before the district court, the S. Ct. decided Burrage, which required for a resulting-in-death conviction that the government prove the victim's use of the drug was a but-for cause of death. The d. ct. vacated the convictions because its instructions did not conform to Burrage. The 10th holds an exception to the law-of-the-case doctrine---an intervening and dramatic change in controlling legal authority--- permitted the d. ct. to do that. This was so, even though the mandate only called for resentencing. The mandate rule is just a subspecies of the law-of-the-case doctrine and so the intervening-change-in-the-law exception applied to that rule as well. The jury instructions gave no guidance as to what "resulted from" meant. The jury could easily have thought, as the government had argued in Burrage, that the drug need only contribute to the death. The 10th's ruling on the initial appeal that the evidence was sufficient to prove a but-for cause did not preclude relief here. Evidence sufficiency is a different issue than whether the jury that convicted under erroneous instructions would have convicted a defendant under proper ones. The government then loses the forfeiture battle. The government argued in its reply brief that Mr. Mackay had forfeited his bad-instruction claim by not raising it on direct appeal. But the government forfeited its forfeiture argument by not raising it in its opening brief. Finally, the 10th does find that the d. ct. was wrong to find the evidence insufficient under Burrage. The law of the case required acceptance of the 10th's initial holding that the evidence was sufficient to prove a but-for cause. Remand for a new trial.
U.S. v. Archuleta, 2015 WL 4296639 (7/16/15) (Ut.) (unpub'd) - The 10th affirms the grant of a suppression motion based on a detention without reasonable suspicion. The officer lawfully stopped Mr. Archuleta for the offenses of jaywalking and improper bicycle lighting and asked Mr. Archuleta what was in the black bag he was carrying. Mr. Archuleta responded that he had a firearm. Standing alone, possession of the firearm in the black bag did not violate any law. A database search showed Mr. Archuleta had a misdemeanor drug conviction and other drug charges that didn't result in convictions. The officer should have let Mr. Archuleta go at that point. Instead the officer kept asking questions which lead to Mr. Archuleta's admissions that he used meth on a regular basis. That the encounter occurred at 1:25 a.m. in a "high-crime area" and that Mr. Archuleta had his criminal history did not create reasonable suspicion that he was a drug user illegally possessing the firearm. The 10th was unimpressed with the time of day because Mr Archuleta was going to a 24-hour convenience store. Importantly, the 10th picked apart the "high-crime area" evidence. It required the "high crime" to relate to the crime the officer suspected Mr. Archuleta of committing. A history of beer thefts at the store and the neighboring town's high crime rate didn't cut it with the 10th. No evidence indicated the area was more likely than others to be visited by drug users possessing firearms. Mr. Archuleta's drug history was not particularly probative either. The officer didn't specify the ages of the conviction and charges. So the history didn't provide a meaningful connection to the suspicion that Mr. Archuleta was a "current, active drug user." Under the new Rodriguez case, it didn't matter that the officer only illegally extended the stop for a minute or two. "An illegal seizure is an illegal seizure," the 10th declares.
Sharp v. Rohling, 793 F.3d 1216 (7/15/15) (Kan.) (Published) - A remarkable 10th grant of habeas relief under the AEDPA standards for the admission of an involuntary statement. During a video-recorded custodial interrogation, after admitting she helped burn the murder victim's belongings, Ms. Sharp asked an officer if she was going to jail. The officer said:"no" 10 times and then explained: "You are a witness to this thing as long as you do not do something dumb and jam yourself." He added: "Just don't tell me no, if I ask you something." Later the officer assured her they were going to work together to get her and her children shelter. The children were brought to her. After Ms. Sharp accommodated the officer with incriminating statements and demonstrations at the scene of the crime, the officer put her in jail. She accused the officer of tricking her, as she was led to her cell. The state trial court found Ms. Sharp's statements to be voluntary because she seemed relaxed and unstressed during the interrogation. The state appellate court found no promise of leniency or at least that any promise was conditioned on not incriminating herself. The court also found Ms. Sharp did not confess in exchange for helping her children or, in any event, it was just a promise of a "collateral benefit."

The 10th held the state appellate court had made an unreasonable factual finding. The officer did in fact make a promise of leniency. After Ms. Sharp made an incriminating statement, he told her she would not go to jail, despite her confession This was not a simple exhortation to tell the truth. The officer's subsequent "something dumb" and "don't say no" comments did not alter the clear leniency promise. The promise was not contingent on her not incriminating herself because she already had. Because the state court's decision was based on an unreasonable fact finding, the 10th reviewed the voluntariness question de novo in light of the totality of the circumstances . Despite factors weighing in favor of voluntariness---the interrogation "only" lasted 5 hours and the officer provided Ms. Sharp with Miranda warnings and water---her statements were involuntary. The 10th reached that conclusion because: Ms. Sharp was promised no jail; the "something dumb" comment meant no prosecution if she cooperated; the officer exhorted her not to say no to his questions; the promise of shelter was inconsistent with arrest; retrieving the children added weight to the no-jail promise; and Ms. Sharp's surprised and angry reaction to her arrest indicates her statements were not the product of her free will. The circumstances critically impaired Ms. Sharp's capacity for self-determination.

The admission error was not harmless. The state stressed to the jury that Ms. Sharp said to the officer [post-promise] she objected that the victim should not be killed "here," not that he shouldn't be killed somewhere else. In her post-promise statements, Ms. Sharp described in detail how she took the lead in burning the victim's belongings to destroy evidence of the crime. Plus the state used her written incriminating statement as well. And, absent her involuntary statements, she may not have testified, leading to an admission on cross that "in a way" the burning was her idea. Evidence aside from her involuntary statements was not nearly as incriminating as her statements. So long to Ms. Sharp's convictions for murder and kidnaping.

Wednesday, September 16, 2015

Shell Game: Conviction for Obstructing Tax Laws Using Fake Trusts Affirmed

U.S. v. Sorensen, 2015 WL 5315645 (9/14/15) (Colo.)(Published). - The Tenth affirms defendant's conviction under 26 U.S.C. § 7212(a) for corruptly endeavoring to obstruct tax laws by the deposit of income and assets into trusts--that were actually shell entities--not properly reported to the IRS and on which taxes were not paid. The court holds: (1) Mr. Sorensen was correctly charged with the offense of conviction even though he could also have been charged under the tax evasion statute -- the government gets to make that call; (2) the district court properly refused to give an instruction requested by Sorensen that required his knowledge of the illegality of his conduct; the district court instructed the jury that it must find he acted "knowingly and dishonestly," and thereby already required such proof; (3) the district court properly gave a deliberate ignorance instruction; there was considerable evidence that Sorensen had attempted to remain deliberately ignorant of the trusts' illegality; (4) while the district court erred by instructing the jury that it could convict Sorensen if it unanimously found any one of the "means" alleged in the indictment, rather than those "means, among others," as the indictment stated, the error actually should have helped Sorensen; (5) the district court did not abuse its discretion by disallowing the defendant's surrebuttal testimony from a witness who could have been called earlier; (6) government misstatements in closing argument did not affect Sorensen's substantial rights in light of the strong evidence against him; and (7) the claim of cumulative error was waived in light of Sorensen's failure to cite pertinent authority supporting it.

Friday, September 04, 2015

Bambi's Revenge? Salting Areas to Lure Wildlife In Violation of State Law Supports Lacey Act Convictions

US v. Rodebaugh, 2015 WL 5011174 No. 13-1081 (10th Cir. 2015): Mr. Rodebaugh ran an outfitting and guide service in Meeker, Colorado, and took clients on elk and deer hunts in the nearby national forest. His clients shot lots of deer and elk, probably because, contrary to state law, Mr. Rodebaugh would salt the ground near the base of his tree stands where the hunters would wait. The Lacey Act says that selling wildlife taken in violation of state law is a federal crime. He was indicted, found guilty of six counts, and sentenced to 41 months in prison and 3 years of supervised release.

1) The Court upholds the district court's denial of the suppression motion. Mr. Rodebaugh confessed. He contended the confession was involuntary because he had only had about 3 hours of sleep in the two days before his confession. The district court, based on testimony that Mr. Rodebaugh normally didn't sleep much, found that this was normal for him. Additionally, there was no evidence that the 69-year-old Rodebaugh was unusually susceptible to coercion. He was not on medications, had graduated from high school, and ran his own business. The details of the interrogation demonstrated Mr. Rodebaugh's will was not overborne. He was interviewed at a picnic table. Most of the time, only two agents were present. He was offered water. He was told he could leave and that he was not under arrest. He was not tricked even though the agents asked for a short meeting and it turned into 3 hours. The Court was concerned by the fact that one agent told Mr. Rodebaugh, before his confession, that "If you work with us, we'll go easy on you, otherwise we are going to take your house and all of your property away from you." Even if this was a threat, the Court says it would affirm under the totality of the circumstances.

2) It was ok for the district court to make Mr. Rodebaugh present first at the suppression hearing.

3) The Colorado law prohibiting baiting was not unconstitutionally vague. The law clearly applied to prohibit what Mr. Rodebaugh did -- put salt next to tree stands to aid in the hunting of deer and elk.

4) The evidence was sufficient to support the convictions.

5) The guidelines were properly calculated. The two-level enhancement (USSG 2Q2.1(b)(2)) for creating a significant risk of disease transmission among wildlife was supported by photos showing elk gathering with their noses down on the ground where the salt was placed. There was evidence this is not their natural feeding behavior. Additionally, the elk were lured to the same places. Both activities increased risk of disease transmission among them. The six-level enhancement for the value being more than $30K was properly based on the testimony of the government witnesses. The Court found that the enhancement for obstruction of justice was supported by various false testimony Mr. Rodebaugh made at trial.

6) The Court divided on the propriety of a supervised release condition prohibiting Mr. Rodebaugh from hunting or fishing or guiding or accompanying anyone hunting or fishing anywhere in the United States. Judge Matheson would vacate this occupational restriction and remand because the district court failed to make specific findings. Judges Bacharach and Moritz, however, held that Mr. Rodebaugh forfeited his argument because he failed to object in the district court and declined to excuse the failure.

Supervised Release Condition Prohibiting Possession of Pornography Was Not Reasonable

United States v. Martinez-Torres, 2015 WL 4590987 (7/31/2015) (NM) (Published): The panel ruled that imposing an adult pornography restriction as a condition of supervised release was not reasonably related to Mr. Martinez’s history or other statutory sentencing factors. As part of his sentence for violating supervised release, the district court ordered that Martinez be forbidden from viewing or possessing any material depicting or describing sexually explicit conduct. Defense counsel objected to this condition. The district court said that the condition was “in the best interests of the public” and necessary because Martinez was a registered sex offender in Texas. The panel decided the court’s reasons were inadequate to warrant the condition. The district court should have made “an individual assessment of whether the condition was appropriate” for Martinez. In other words, the court had to demonstrate it had a “reasoned basis” for applying the condition to the specific accused. Since the district court used Martinez’s history as a reason for imposing the condition, it had to show that sexually stimulating materials had fueled the unfortunate parts of his history. The panel said that nexus can be satisfied by looking at expert studies or considering the court’s own observations and experience. The panel listed a page and a half of authority coming out on both sides of the question of whether viewing adult pornography promotes sexual aggression. Finally, the court distinguished Mike and Hahn, two cases in which other panels found a court imposing this condition had not committed plain error. The panel explained that a district court’s erroneous ruling will survive a plain error analysis when other circuits are divided on the issue. (Which, on this issue, they are.) However, when such an error is reviewed for an abuse of discretion, the court will “examine more deeply whether the apparent differences in other circuits can be reconciled” and then will reach its “own conclusion about the governing law.” In the district court, therefore, it is best to object to such conditions.

Motion to Dismiss Petition for Revocation of Supervised Release Should Have Been Granted

US v. LeCompte, 10th Cir. No. 14-2200 (NM): The Tenth Circuit agreed that Mr. LeCompte could bring an "as applied" challenge to his revocation of supervised release and reversed for further proceedings. Mr. LeCompte is a registered sex offender who was on supervised release for a SORNA violation. One condition prohibits Mr. LeCompte from being in the presence of minors without the presence of another adult approved by the Probation Officer. A probation officer visited Mr.LeCompte's home and found him sitting outside with his girlfriend, other adults (none of the adults was approved by the PO) and the girlfriend's three-year-old granddaughter. Over Mr. LeCompte's strenuous objections, the district court revoked Mr. LeCompte's supervised release. The 10th first rejected the government's argument that Mr. LeCompte could not challenge the condition as applied to his conduct, making it clear that such challenges are appropriate even when the defendant did not appeal the condition when first imposed. The Court then found that the district court's findings in support of revocation were legally insufficient. It emphasized that "surface comparisons" with the underlying sex offense are insufficient; rather, an individualized assessment is necessary. The district court also failed to discuss relevant aspects of the prior offense and Mr. LeCompte's history and characteristics, namely that the prior sex offense was many years ago and he has not been involved in any inappropriate relationships with minors since then. The district court also did not explain how applying the prohibition to the facts before it was not greater than necessary for deterrence, protection of the public, and rehabilitation.