Monday, December 22, 2014

Unpublished decisions

U.S. v. McClung, 2014 WL 6892687 (12/9/14) (Col.) (unpub'd) - Something to keep in mind when our clients want to apologize. The 10th says it was okay for the d. ct. to consider as a factor against Mr. McClung that, although he wrote a nice letter of apology to the court on the eve of sentencing, he never apologized earlier to the victims when he had the chance.

U.S. v. Greenwood, 2014 WL 6980914 (12/11/14) (Col.) (unpub'd) - The 10th finds no entrapment as a matter of law. The jury acquitted Mr. Greenwood of the first drug transaction, but convicted him of the 2nd and 3rd transactions. Mr. Greenwood argued any predisposition to sell drugs on the later occasions was the product of improper government conduct with respect to the first transaction. But the 10th found sufficient differences between the first and the later transactions in terms of where and when [11 and 19 days later] they occurred such that the first deal was not part of a continuous course of conduct. The 10th refuses to adopt a rule that once entrapment occurs a defendant is immune from culpability thereafter. The 10th also noted Mr. Greenwood had a prior drug-sale conviction, multiple cell phones, large amounts of cash, guns, drugs and drug paraphernalia.

Sanders v. Dowling, 2014 WL 7003775 (12/12/14) (Okl.) (unpub'd) - The Supreme Court's decision in Missouri v. McKneely, 133 S. Ct. 1552 (2013), which required a warrant for a DWI blood draw under certain circumstances, did not restart the statute of limitations. The time limit would restart only if the decision would apply retroactively. Teague prevents the decision from being retroactive. It's a procedural rule that is not a watershed rule, since it does not decrease the risk of an inaccurate conviction.

U.S. v. Oyegoke-Eniola, 2014 WL 6980976 (12/11/14) (Kan.) (unpub'd) - The 10th says it construes pro se pleadings liberally even if the pro se person is highly educated, in this case, with a B.S. in computer engineering. In this case, the d. ct. said at sentencing: "I have seen all kinds of people coming through court from foreign countries but not with your education and intelligence and level of living your life committing crimes," and also: "Of all people coming to the U.S. to get into good schools, you didn't deserve that, so I'm going to do everything to get you out of the country permanently." Assuming this evidenced reliance on the impermissible factor of alienage, there's no relief under the plain error standard of review because there was no effect on Mr. Oyegoke-Eniola's substantial rights, according to the 10th, given the sentence of time-served and a supervised release term within the guideline range. Although the special condition of handing him over to immigration officials upon completion of prison might seem like it affects his substantial rights, it's not an unusual condition. In other words, no plain error relief if a defendant gets the usual within-guideline treatment.

Pinson v. Berkebile, 2014 WL 6892179 (12/9/14) (Col.) (unpub'd) - A procedural victory for a prisoner in a § 1983 civil rights suit. Mr. Pinson alleged he could not exhaust his remedies in the federal prison system because the prison told him he couldn't fill out the grievance form until he received a disciplinary hearing officer (DHO) report and he never received a DHO report. The d. ct. was wrong to find a lack of exhaustion based on BOP's claim that he did get the DHO report and the policy that he receive such a report. It was not proper for the court to simply accept BOP's word over the prisoner's that he received the DHO report. That the rules require providing the report doesn't mean the rules were followed in Mr. Pinson's case. Also, the court should consider whether exhaustion is waived because the prison didn't provide Mr. Pinson with staff representation to help him exhaust.

Thursday, December 18, 2014

U.S. v. Mencia-Hernandez

U.S. v. Mencia-Hernandez, 2014 WL 6791249 (12/3/14) (Ut.) (unpub'd) - It was not plain error for the district court not to ask Mr. Mencia-Hernandez if he wanted to allocute with respect to his supervised-release-violation sentence. While Rule 32 requires the court to address the defendant personally to seek allocution for an initial sentencing," Rule 32.1 only requires that the defendant be afforded an opportunity to allocute. Here the court personally addressed Mr. Mencia-Hernandez to seek allocution during the portion of the consolidated hearing set aside for the initial sentencing for a new offense, but did not again seek allocution during the revocation part of the hearing. This was not plain error, especially because the issues for sentencing on the new offense and the revocation were intermixed. Plus no harm done, since Mr. Mencia-Hernandez only said he wanted to be with his mom in Honduras for his allocution. He didn't suggest he would say something more persuasive with respect to the revocation sentence.

Hawker v. Sandy City Corp.

Hawker v. Sandy City Corporation, 2014 WL 6844930 (12/5/14) (Ut.) (Published & Unpub'd) - Oddly, the majority's decision is unpublished, but Judge Lucero's concurrence is published. The majority held that an officer's use of a twist-lock (twisting the suspect's hand to place tension on the arm to get compliance) on a 9 year-old, 67 pound, boy was not excessive force. The boy had been caught with someone else's IPad. The principal called the police. The principal told the responding officer she wanted to file charges against the boy. The officer said to the boy: "we can do this the easy way by you talking to me or the hard way by you not talking to me." The boy said nothing. The officer grabbed his arm and yanked him up. The boy grabbed the officer's arm. The officer used the twist-lock maneuver, pushed him against the wall and handcuffed him. Because the officer could view the boy's arm-grabbing as resisting arrest and escalating a tense situation, it was objectively reasonable for the officer to do what she did. The majority explains that stories in the news show how violent little children can be. The boy's "age and small demeanor do not necessarily undermine an officer's concern for safety and need to control the situation." The majority acknowledges the "unfortunate" nature of the facts in this case. It's "regrettable" that an officer feels the need to resort to such physical force. But "equally regrettable is the disrespectful, obdurate, and combative behavior of that 9-year-old child."

Judge Lucero agrees that 10th precedent requires the majority's holding. But Judge Lucero says he disagrees with that precedent. He pleads for dealing with petty crimes by minors "in a more enlightened fashion" to not automatically extend qualified immunity to officers for the kind of conduct involved in this case. He observes that this kind of treatment could leave permanent scars and unresolved anger and have a far-reaching impact on the boy's future. The judge asks: 'Why are we arresting 9-year-old schoolchildren?" He points out that, although the recent tragedies at schools might justify certain security measures, they don't require elementary schoolchildren to be "manhandled into a criminal law system in which they are treated as if they were were hardened criminals." Judge Lucero bemoans the practice of using the police to take care of matters that could be handled by school personnel, thus creating the school-to-prison pipeline. He worries that depriving children of their education by suspending them and sending them into the criminal justice system will deprive them of the opportunity to succeed. He concludes: "Our present jurisprudence is sending the wrong message to schools. It makes it too easy for educators to shed their significant and important role in the process and delegate it to the police and courts."

Jones v. Trammell

Jones v. Trammell, 2014 WL 6844824 (12/5/14) (Okl.) (Published) - The 10th affirms an Oklahoma state death sentence. The 10th chooses to consider an issue it thinks Mr. Jones may have waived by not raising it below, saying the waiver rule is not inflexible and the 10th has discretion to forgive waiver. The 10th interprets the Oklahoma Court of Criminal Appeals' ("OCCA") ruling to be based on the prejudice, not the performance, prong of Strickland. The 10th relies on the court's focus on the likely effect of the testimony at trial of the witness counsel didn't find and call. The 10th's conclusion dooms Mr. Jones who didn't even argue the prejudice decision satisfied AEDPA's standard. The 10th finds reasonable the OCCA's determination that the inmate witness's credibility would be questionable given that he was a convicted child abuse murderer and had little to lose by perjuring himself with claims that were impossible to corroborate. Plus, the witness's version of what the state's key witness told him contradicted the version of another inmate witness. So the witness would only have established that the only eyewitness who placed Mr. Jones at the scene of the carjacking "changed his story to suit his own needs." This was not valuable to Mr. Jones, the 10th reasons, because the OCCA found this was "already clear to the jury" based on counsel's cross-examination. In any event, the 10th thought other evidence, besides the key witness's, was 'quite strong."

Tuesday, December 09, 2014

Unpublished Decisions

Madrid v. Wilson, 2014 WL 6057162 (11/14/14) (Wyo.) (unpub'd) - A claim based on a memo discovered in the prosecutor's files by the Utah Innocence Project was untimely. Mr. Madrid argued it wasn't until another favorable memo was discovered that he could file his § 2254 petition and that the Innocence Project was short on resources. But the 10th, while "sympathetic" to a petitioner's desire to avoid being penalized for successive filings by building as strong a case as possible before filing, the factual predicate for the claim was the discovery of the first memo. And "lack of resources" and negligence don't cut it for equitable tolling.

On the other hand, the second memo claim was timely. The state could make the timing procedural argument that the district court rejected, even though it didn't cross-appeal. But the Innocence Project could not be faulted for not finding the memo when it first got the file containing the memo because the file was in a file related to a different case of the same DA's office. The 10th rejects the district court's rationale for rejecting the Brady claim that the memo was not material because it described another suspect with some features that Mr. Madrid had. There were many features he didn't have. But nonetheless the memo wasn't material. The memo was a vague description of a possible alternative suspect "weighing lightly against the substantial evidence against Mr. Madrid." The 10th finds the memo wouldn't further discredit one of the state's witnesses because she had already been thoroughly impeached at trial. The memo evidence didn't match the direct evidence linking the alternate suspect.

Keith Township v. Freightliner, 2014 WL 5906561 (11/13/14) (Kan.) (unpub'd) - The 10th upholds the admission of fire expert evidence. It's not appropriate to exclude an expert witness on credibility grounds. That's the jury's province. Also the fact that another expert would have investigated the mater differently doesn't make an expert's opinion unreliable, so long as the method used is scientifically sound. It was not an abuse of discretion to exclude lay testimony because it was too complex for lay folks.

Upward variance in wire fraud case affirmed

U.S. v. Kujat, 2014 WL 5906174 (11/14/14) (Col.) (unpub'd) - The 10th affirms an upward variance of 19 months from the top of the guideline range to 60 months for wire fraud. The district court relied in large part on the number of victims, which the guidelines consider. But the district court wasn't happy with the guidelines and noted the nature of the victims---ordinary working people---which the guidelines don't consider. And it was okay for the court to consider that Mr. Kujat had 9 felony convictions, even though "he had experienced some time without the evidence commission of criminal offenses."

Brown v. Parker, 2014 WL 5840359 (11/12/14) (Okl.) (Published) - Mr. Brown was not entitled to § 1983 relief for being incarcerated beyond the term of his sentence. He was sentenced to two two-year concurrent sentences by two different judges. The judge in the second case issued a subsequent order saying Mr. Brown must be released when his first sentence was complete. But that order did not comply with Oklahoma law which forbids "coterminous" sentences. Even though the sentences were concurrent, they finished at different times because they began at different times.

Attorney found in contempt, fined $2K for missing sentencing hearing

U.S. v. Hernandez, 771 F.3d 707 (11/14/14) (Col.) (Published) - The 10th affirms a direct contempt finding and $2,000 sanction for an attorney's absence from a sentencing hearing. After a sentencing hearing was rescheduled by virtue of an order which said no further continuances would be granted, Mr. Velasco, the attorney, arranged a family vacation out of town. The district court denied the attorney's motion for a continuance. Mr. Velasco did not show up for sentencing and his client did not accept the substitute counsel Mr. Velasco sent. Mr. Velasco argued on appeal that the d. ct. should have followed the procedures required for indirect contempt. The 10th reviewed for plain error because Mr. Velasco, although he objected on other grounds, never mentioned the distinction between direct and indirect contempt. Any error was not plain because this situation was different from another case where indirect contempt procedures were warranted for an attorney who was five minutes late. In this case, "the absence was a part of a series of larger events suggesting a conscious disregard of the court's procedures." Plus, the 10th ruled, Mr. Velasco got ample opportunity to defend himself, so he got enough procedure such that the contempt finding does not affect the fairness, integrity or public reputation of judicial proceedings.
U.S. v. Gay, 2014 WL 5840303 (11/12/14) (Okl.) (Published) - A district court has no authority to consider a collateral constitutional challenge to a sentence in an 18 U.S.C. § 3582(c)(2) proceeding, the 10th holds. Despite this holding, for good measure, the 10th determines Mr. Gay's 262-month sentence is not cruel and unusual punishment, even if it depends on an unfair 100:1 crack to cocaine ratio [his crack quantity was so high he did not qualify for § 3582(c)(2) relief under a different ratio].

Tuesday, November 18, 2014

New Website: Collateral Consequences Resource Center

The Collateral Consequences Resource Center was launched November 18, 2014. Its "purpose is to fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates," according to the press release. Another goal "is to foster public discussion and disseminate information about what has been called the 'secret sentence.'” The website will be a source for news and commentary about developments in courts and legislatures, resources for practice and advocacy, and information about getting relief from collateral consequences in various jurisdictions.It intends to reach a broad audience, and is soliciting submissions and tips about developments and proposals for blog entries. The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.” Through its website the Center will provide news and commentary about developments in courts and legislatures, gather practice and advocacy resources, and provide information about how to obtain relief from collateral consequences in various jurisdictions. The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction. It invites tips about relevant current developments, as well as proposals for blog posts on topics related to collateral consequences and criminal records. For more information, visit the Collateral Consequences Resource Center.

Monday, November 17, 2014

Sentence, Supervised Release Conditions Affirmed in Child Porn Case

US v. Morrison, No.13-7051 (ED Okla), 11/13/14 - Published. Child porn case in which defendant, who had over 20,000 images on his computer, got stat max of 120 months and appealed procedural reasonableness of the sentence and conditions of supervised release. Held: (1) no procedural error where district court refused to vary downward based on policy disagreement with the child porn guidelines; (2) no procedural error in imposing two-level increase for use of a computer. The court was free to agree with defendant on these points, but simply chose not to and explained, albeit briefly, why it thought the sentence was reasonable; (2) challenge to ban on use of computers without permission of the PO was waived, where defendant argued that the ban would serve to deter, and thus made a conscious choice not to challenge the ban, but rather tried to turn it to his advantage; (3) ban on use of cameras without permission of the PO was OK, even though defendant did not use a camera to amass his collection. Having 20,000+ images means defendant might use a camera to record CP in the future and besides, he can always ask the PO for permission to use a camera.

New NACDL Report on How Courts Impede Fair Disclosure

Today the National Association of Criminal Defense Lawyers released the report Material Indifference: How Courts are Impeding Fair Disclosure in Criminal Cases. According to NACDL's press release, "This groundbreaking study documents one of the major problems facing the nation's criminal justice system today: the failure to ensure full, fair and timely disclosure of information favorable to an accused person in a criminal action. It is a significant step towards achieving the vital reforms necessary to guarantee a fair trial for every accused person," NACDL President Theodore Simon said.

The release describes the study's findings as "extensive and dramatic". Findings include:

The materiality standard produces arbitrary results and overwhelmingly favors the prosecution. Indeed, in those decisions where the prosecution failed to disclose favorable information, it still won 86% of the time, with the court concluding that the information was not material.

Courts almost never find Brady was violated by the late disclosure of favorable information. Of the 65 decisions that involve late disclosure of favorable information, only one resulted in a Brady violation finding.

Favorable information is more likely to be disclosed late or withheld entirely in death penalty decisions. Favorable information was never disclosed or disclosed late by the prosecution in 53% of decisions involving the death penalty, but only 34% of all the decisions studied.

The complete press release and report are available here.

Thursday, November 06, 2014

Tenth Rejects Equal Protection Challenge to Armed Career Criminal Act Enhancement

U.S. v. Titley, 2014 WL 5580706 (11/4/14) (OK)(published) - Using the equal protection clause, Mr. Titley challenged the meaning of “serious drug offense” in the Armed Career Criminal Act (ACCA). He argued that although his convictions for possession of marijuana with intent to distribute in Arkansas and unlawful possession of marijuana with intent to distribute in Oklahoma otherwise qualify for the ACCA enhancement, these crimes should not count because they would not be “serious drug offense[s]” had he committed them in 19 other states or D.C. The court dismissed his argument. It said that by limiting “serious drug offense” under state law to manufacturing and distribution crimes and by including only those offenses carrying at least a ten-year maximum sentence, Congress acted rationally. A state crime meeting these criteria as a qualifying offense for ACCA sentencing enhancement serves the legitimate government purpose of incapacitating repeat offenders who have been convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g) and deterring others from committing ACCA predicate crimes and a § 922(g) offense.

Monday, November 03, 2014

Petitioner obtains remand for an evidentiary hearing

U.S. v. Adams, 2014 WL 5394293 (10/24/14) (Ut.) (unpub'd) - The 10th remands for an evidentiary hearing on a number of ineffective assistance of counsel claims. Mr. Adams alleged his trial attorney, Mr. Leavitt, interviewed his girlfriend-co-defendant in prison. She indicated she and Mr. Adams were common-law spouses. Mr. Leavitt prepared an affidavit to establish a spousal privilege to keep her from testifying against Mr. Adams. Unfortunately, the girlfriend had previously entered into a plea agreement that required her to testify for the government. When the government informed her attorney, Mr. Jaenish, about Mr. Leavitt's scheme, Mr. Janeish was displeased. He threatened to file a bar complaint against Mr. Leavitt for talking to a defendant who had counsel. The girlfriend testified against Mr. Adams at trial. Mr. Leavitt conducted a less-than-scintillating cross. When Mr. Adams complained about this, Mr. Leavitt promised to recall her to get out information that was favorable to Mr. Adams and impeaching of the girlfriend. That didn't happen after a shouting match between Mr. Leavitt and Mr. Jaenish in which Mr.Jaenish once again threatened a bar complaint When Mr. Adams asked why his girlfriend was not recalled, Mr. Leavitt explained that the prosecution would revoke her plea bargain and she would serve 40 years in prison. This scenario evidenced Mr. Leavitt was laboring under conflicts of interest because of his interest in avoiding a bar complaint and his apparent concern for the girlfriend's welfare. The 10th found that, if his allegations were true, Mr. Adams was entitled to relief. An evidentiary hearing was necessary to determine whether the instances of ineffective representation were the result of a conflict or Mr. Leavitt's strategic choices.

The 10th also found an evidentiary hearing was necessary to consider Mr. Adams' allegation that Mr. Leavitt lied when he told him the government had not filed an § 851 notice, which would have increased his mandatory minimum from 10 to 20 years. Mr. Adams said he would have taken the plea offer if he had known the truth. An evidentiary hearing would resolve whether Mr. Leavitt lied or instead the § 851 had not yet been filed at the time of the relevant conversation, whether the government's plea offer was made and how long it was good for, how willing was Mr. Adams to accept the plea offer, whether the government would have withdrawn the plea offer and whether the court would have accepted it.

On appeal the government changed course from its position in district court and contended an evidentiary hearing was necessary for the above two claims. The 10th rejected Mr Adams' contention that the government had waived its evidentiary hearing argument on appeal. He should be entitled to relief without such a hearing, Mr. Adams argued. The 10th reasoned that the government was not trying to better its position on appeal by making its argument. It was actually adopting a position more favorable to Mr. Adams than it had before. So no waiver.

With little discussion, the 10th also finds Mr. Adams' other two claims, if proved, would entitle him to relief, leaving to the district court the decision whether to hold an evidentiary hearing on those ineffective-assistance claims regarding: (1) appellate counsel's failure to adequately argue his life sentence was substantively unreasonable; and (2) trial counsel's failure to object to instances of prosecutorial misconduct.

Most impressively, Mr. Adams' appellate counsel sought a more-than-four-fold expansion of the word limit to 60,000 words. The 10th rules counsel could have fit in all of Mr. Adams' additional nine claims with a little more abbreviation or consolidation.

Unpublished decisions

U.S. v. Pulsifer, 2014 WL 5369397 (10/23/14) (Okl.) (unpub'd) - The 10th applies the good faith exception. Mr. Pulsifer contended there was probable cause for a warrant to search only for evidence of marijuana use, but not of distribution. The 10th found the warrant affidavit was not "devoid of factual support." An anonymous tipster claimed Mr. Pulsipher was distributing marijuana from his home and that there was heavy traffic in and out of the place. A three-week surveillance contradicted the tipster's traffic claim. Nonetheless, the matching of Mr. Pulsifer and his home to the descriptions the tipster gave, the discovery of a small quantity of marijuana in Mr. Pulsifer's trash and the 2007 delivery of 30 grams of marijuana to Mr. Pulsifer was enough to pass through the good faith portal regarding distribution. Significantly, and most troublingly, the 10th reasons the search was okay because it would have taken a "close comparison" between the affidavit and the warrant to discover any probable cause issues.

U.S. v. Stewart, 2014 WL 5354763 (10/22/14) (Col.) (unpub'd) - The 10th finds Mr. Stewart must have understood what his appeal waiver covered because he assured the judge he understood it, even though his attorney seemed a bit confused about the waiver at the plea hearing.

U.S. v. Wagner, 2014 WL 5394307 (10/24/14) (Wyo.) (unpub'd) - There was no reason for the district court to grant a further variance on the grounds that the handgun's relationship to the burglary was marginal given that it was in a locked safe in Mr. Wagner's car when he tried to break into a pharmacy. Mr. Wagner had stipulated to the enhancement for possession of a firearm in connection with a felony and counsel apologized to the district court for raising the "marginal" issue.

Pelletier v. U.S., 2014 WL 5334203 (10/21/14) (Col.) (unpub'd) - A procedural victory for a § 2241 petitioner. Contrary to the district court's ruling, Mr. Pelletier was "in custody" for habeas purposes where he was released on bond pending a removal hearing. That Mr. Pelletier must appear at immigration hearings scheduled at the discretion of the immigration court was enough to establish custody.

Cleveland v. Martin, 2014 WL 5368884 (10/23/14) (okl.) (unpub'd) - Qualified immunity applied to Mr. Cleveland's First and Eighth Amendment complaints against the prison denying him visitation with his minor children based on his previous conviction of child abuse. Although one can reasonably infer a "substantial hardship," the 10th states there is no clearly established right to familial association in the prison visitation context. Nor does visitation with minor children constitute a "necessity of life." So deprivation of that visitation is not cruel and unusual punishment.