Friday, October 17, 2014

Tenth discusses the reliability prong of FRE 702

In re: Urethane Antitrust Litigation, 2014 WL 4801253 (9/30/14) (Kan.) (Published) - In the course of finding no abuse of discretion in permitting expert testimony, the 10th insists that reliability is primarily a question of the validity of the methodology employed, not the quality of the data used in applying the methodology. It is up to the jury to evaluate the reliability of the underlying data, assumptions and conclusions.

Defense-favorable decision on fraud guidelines; other issues not preserved

U.S. v. Powers, 2014 WL 4801223 (9/29/14) (N.M.) (unpub'd) - The § 2B1.1(b)(14)(A) bump for a fraud where the defendant derives more than a million dollars in gross receipts does not apply even if the whole enterprise hauled in more than a million dollars if some of the criminally-responsible participants "earned" enough money to lower the defendant's individual take below a million dollars.

The Rule 701, lay testimony argument on appeal was not preserved below. Despite numerous objections to bank employees' testimony, none mentioned the Rule 701 issue. In your basic mortgage fraud case, it was not plain error under Rule 701 to admit hypothetical testimony by bank employees that, if the fake incomes had been lower, and the buyers truthfully said the houses were investment properties, and the bank knew the money given at closing would be going to the buyers to make the mortgage payments, the bank would not have approved the loan. The witnesses did have personal knowledge of their employers' lending practices at the time of the offenses and of the particular documents involved by the time of trial. There's nothing inherently inappropriate in asking lay witnesses to answer hypothetical questions, especially when the answers are based on personal knowledge. The questions did not call for particularly specialized knowledge, only basic math, and only relied on the witness having a limited amount of expertise by virtue of his or her position in the business, not on outside expert reports.

Mr. Powers did not preserve an objection to the admission of adoptive business records (one company keeping as business records another company's business records). He did file a proper motion in limine before trial, but the district court did not issue a definitive ruling because it denied the motion "subject to foundation being laid." Mr. Powers did not object to the relevant records at trial. So he's out of luck. Any error in admitting adoptive business records was not plain. Other circuits have adopted the adoptive-business-records doctrine and the 10th has been non-committal.

Upward variance based on speculation affirmed

U.S. v. Zamarripa-Favela, 2014 WL 4921951 (10/2/14) (Kan.) (unpub'd) - Upward variance by the USDC Kansas affirmed. The court varied in a reentry case from a range of 15-21 months to a sentence of 36 months. The district court's speculation that 4 DUI convictions meant Mr. Z-F must have driven drunk on many other occasions was okay because it could sentence Mr. Z-F based on uncharged conduct. The 10th does not address the notion that due process requires some proof of uncharged conduct. The variance was not an abuse of discretion. It was based on that speculation, the dangerousness of the 4 DUIs and Mr. Z-F's 10 reentries. The court's policy disagreement as to how the Sentencing Commission treats prior DUIs is just fine. Finally, the 10th says the court didn't need to give detailed reasons for its sentence, which seems to conflict with the Lente case, 647 F.3d 1021, which requires an explicit consideration of material arguments against an upward variance.

Convictions for unlawful grazing on public lands upheld

U.S. v. Jones, 2014 WL 4938034 (10/3/14) (Wyo.) (Published) - A handy case for the next time you represent a cattle rancher. Mr. Jones is apparently a Cliven-Bundy-type rancher. He couldn't manage to keep his cattle and other stuff off of BLM property since the early 1990's. The 10th held there was sufficient evidence to convict him of 2 counts of unauthorized grazing on public lands given: testimony by several witnesses of his longstanding history of allowing his cattle to graze without permission on public lands; BLM ranger's testimony that the ranger made Mr. Jones aware of the public land boundary line; and tire marks from a dual-wheeled vehicle like Mr. Jones's found near a large number of grazing cattle. There was also sufficient evidence Mr. Jones was guilty of unauthorized use of public lands where: testimony indicated lumber, vehicles and other stuff were left on a BLM allotment; one of the vehicles left was registered to Mr. Jones; the ranger made Mr. Jones aware of the land's public status; Mr. Jones was given 60 days to remove the stuff; he promised to do so, but he didn't.

The state's fence-out law, which apparently requires people to build fences to keep livestock out, does not apply to the BLM. Federal law reigns supreme. So Mr. Jones's proffered testimony by a sheriff that the sheriff believed the fence-out law should apply was irrelevant and, in any event, its admission would violate Evidence Rule 403 because it would cause jury confusion. Mr. Jones received due process by virtue of his trial. It didn't matter that his summons didn't bear the court's seal, that the Interior Secretary did not give written approval of the prosecution, that no administrative process was followed pre-prosecution, or that Mr. Jones received no notice a grazing violation would result in a criminal charge Can you tell this guy was representing himself?

Court finds IAC based on cross-examination of witness, but no prejudice

West v. Farris, 2014 WL 4977587 (10/7/14) (Okl.) (unpub'd) - In this § 2254 case, the 10th finds it to be deficient performance when counsel crossed a state witness about his motivation to fabricate testimony to obtain a reduced sentence without knowing this would open the door to the admission of pre-snitching, consistent statements by the witness. But it was not unreasonable for the state courts to find the deficiency non-prejudicial because counsel was able to recall the witness and cross him about inconsistencies in his testimony that counsel had avoided for fear of opening the door. Also, the 10th was fine with the state courts' finding counsel's decision to be reasonably strategic in the following circumstances: the district attorney's staff told an alibi witness who showed up pursuant to a defense subpoena that she didn't have to worry about the subpoena because only the prosecution could lock her up; she disappeared; counsel couldn't find her in the courthouse and their investigator didn't find her at home; counsel eventually decided to proceed without her because the jury already heard the petitioner's alibi statement. Who needs corroboration of a defendant's alibi after all? If you can't believe the defendant, who can you believe?

Counsel was not deficient in failing to object to special conditions of supervised release

U.S. v. Ray, 2014 WL 5032439 (10/9/14) (Kan.) (unpub'd) - The Supreme Court's decisions in the plea-bargain cases---Frye and Lafler---and in Padilla has not lowered the bar to obtain relief for ineffective assistance of counsel. Counsel did not act deficiently when counsel failed to object to the following supervised release conditions for a child porn defendant: prohibition on unsupervised contact with minors, prohibition on viewing adult porn, requirement of consent to access and examine internet-capable devices; and requirement of substance abuse treatment, where Mr. Ray used to smoke marijuana 3-6 times a week and drank alcohol every month or every other month when he was 20 years old.

Helpful Opinion on Modifying Restitution Orders

U.S. v. Grigsby, 2014 WL 5072589 (10/10/14) (Kan.) (unpub'd) - A partial victory for a defendant acting for the victim. Contrary to the district court's belief, it had the authority to modify its restitution order to change the recipient for the benefit of the minor whom Mr. Grigsby had sexually exploited for child porn purposes. The authority arises from 18 U.S.C. § 3664(k) & 3572(d)(3), which allow modification when financial circumstances change. Mr. Grigsby alleged the child's mother, who received the restitution payments for the child, was neglecting the child to the point where the state had taken custody. He proposed setting up a trust fund. The 10th Circuit's reasoning might be helpful in case a defendant wants other changes in a restitution payment schedule. The 10th just said: "We can find nothing in the restitution-payment statutes which limits the district court from modifying a restitution order" for the purposes Mr. Grigsby sought. Ordinarily the 10th might want a specific authorization, but obviously the 10th wanted to do what Mr. Grigsby asked it to do.

The district court also had authority to modify restitution payments in light of Mr. Grigsby's ongoing divorce proceedings, which might change his financial situation. On the other hand, he couldn't get his supervised release conditions modified. He hadn't appealed them and, besides, his request was a bit premature: he hadn't yet finished his 260-year sentence, which he started in 2013. Nor could Mr. Grigsby change the original restitution amount. He should have appealed that. And he lost his chance to get non-porn photos from his forfeited computer. He was given one chance and gave the photos to his wife. He'll have to fight about that in the divorce proceedings.

Tuesday, October 14, 2014

Unpublished decisions

Moreno v. Taos County Board of Commissioners, 2014 WL 4723629 (9/24/14) (N.M.) (unpub'd) - A party is not entitled to an instruction that the jury can draw an adverse inference from an opponent's failure to preserve evidence unless the failure was intentional or in bad faith. Here the district court did not clearly err in holding there was no bad faith in failing to preserve taser evidence where the county policy only required officers to preserve taser evidence if a taser was discharged in dart-mode. In this case the taser was used in drive-stun mode.

U.S. v. Lake, 2014 WL 4694914 (9/23/14) (Okl.) (unpub'd) - Another chapter in the odd Lake case. This is the case where the government mistakenly conceded in the 10th that Alleyne prohibited the drug-death enhancement under § 2D1.1(a) based on judicial fact-finding. The 10th mistakenly bought the concession. On remand Mr. Lake's guideline range went down from 135-168 to 10-16 months. His sentence did not fall as far. It went from 135 to 95 months. The district court wasn't willing to forget the death. It upwardly varied in part because the heroin Mr. Lake shared with his son's drug-addict friend "resulted in and contributed to the drug addict's death." The district court claimed it would have imposed the same sentence "notwithstanding any judicial fact-finding." The 10th found the sentence substantively reasonable without noting the apparent inconsistency of not being allowed to increase the guideline range due to judicial fact-finding but being able to increase the sentence by variance based on the same judicial fact-finding.

Sanctions imposed on tax avoiders reversed for lack of due process

U.S. v. Melot, 2014 WL 4783413 (9/26/14) (N.M.) (Published) - The 10th reverses sanctions imposed on tax avoiders. The evidence indicated the Melots had a friend file a motion to intervene in a case where the government sought an order to sell the Melots' real property to pay off tax assessments. The friend asserted he had a lien on the property. Unfortunately, this friend was living in prison, not in Hobbs, as he had claimed, and had no liens. At the end of the hearing on the matter the government sought reimbursement of its costs. The Melots' counsel responded that if Rule 11 sanctions were to be imposed the Melots were entitled to notice and an opportunity to be heard. Subsequently, the magistrate judge gave notice of a possible contempt hearing because of the Melots' deceptive lien intervention attempt. The district court, without holding the Melots in contempt, imposed sanctions: removal of Ms. Melot and her children from the property, cost reimbursement and imposition of filing restrictions. This violated due process. The Melots were not given notice or an opportunity to be heard with respect to the possible sanctions or the basis for the sanctions--i.e, that it would be based on the court's inherent authority, not Rule 11.

Tenth modifies the modified categorical approach

U.S. Trent, 2014 WL 4746294 (9/25/14) (Okl.) (Published) - An important decision about the modified categorical approach. The 10th makes it harder to avoid the modified categorical approach. First, the 10th holds that a statute is divisible and thus subject to the modified categorical approach where it refers to all state criminal offenses. For example, in this case Oklahoma prohibits two or more people from conspiring to commit "any crime." That conspiracy offense is divisible into a "finite list" of every crime in the Oklahoma statutes. It's not a hypothetical list, just a lengthy one. The court may look to the judicial documents to see which crime the defendant was convicted of conspiring to commit. In this case those documents indicate Mr. Trent was convicted of conspiracy to manufacture meth. This is a "serious drug offense" under the ACCA because it "involves manufacturing a controlled substance" under § 924(e)(2)(A)(ii), Second, the 10th holds the alternatives don't necessarily have to be "elements" in the strictest sense, despite Descamps' emphasis on that term. That is, it is okay if under state law the jury could convict someone of conspiracy without agreeing unanimously on which crime the defendant conspired to commit. The modified categorical approach may be used if the judicial documents show the prosecutor only charged a conspiracy to commit one crime, as in this case. In such a circumstance we know the jury unanimously found a conspiracy to commit one particular crime. This seems to say you use the modified categorical approach to decide whether to use the modified categorical approach. Third, the 10th says its second holding doesn't matter in this case because in Oklahoma the jury must agree unanimously on the particular crime defendants conspire to commit. So the kind of crime is always an element in the strictest sense. In short, the 10th didn't need to make the second holding, but chose to do so anyway. The second holding may prove problematic in circumstances such as convictions under California's controlled-substance statutes, which don't make the identity of the controlled substance an element and which prohibit some drugs that are not controlled substances under federal law. Judge Seymour refused to go along with the second holding, but didn't explain why. The resulting 196-month sentence was not substantively unreasonable despite the fact that Mr. Trent's ADHD lead him to his problems with the law, he was fundamentally a good person, he has not committed any violence and didn't use his gun offensively.

The 10th also summarily addresses other issues. Importantly, while not helping Mr. Trent, the 10th does say: "we caution that courts should be hesitant to admit such evidence [a prior felon-in-possession (fip) conviction to show the knowledge needed to prove a current fip charge] under [FRE Rule 404(b)] because of the great danger of unfair prejudice. Indeed, the district court would not have abused its discretion had it refused to admit the evidence." But, despite this great prejudice, the 10th, following U.S. v. Moran, 503 F.3d 1135 (10th Cir. 2007), finds no abuse of discretion in admitting the prior conviction to show Mr. Trent knew the gun was in a car he shared with others. Since the question of knowing possession was debatable in this case the prior conviction was even more probative than in Moran. Trent is of no use on appeal, but helpful for trials. Also an insufficiency-of-the-evidence argument challenging the credibility of government witnesses "is doomed to failure" in the 10th's words. And defense counsel gets a compliment: "This is one of the more imaginative arguments presented to this court," the 10th says. But the 10th nonetheless strikes a blow against imagination, holding that putting in the instructions the indictment's reference to § 924(a)(2) was okay, despite counsel's concern that a juror might look up the statute, see Mr Trent only faced a max of 10 years and be more likely to convict than if the juror knew he faced life under the ACCA. Finally, the instruction that the government was not required to use all investigative techniques available to it was okay,even though part of Mr. Trent's defense was that shoddy investigation prevented the government from finding who really possessed the gun. The instruction didn't prevent the jury from concluding the faulty investigation undermined the credibility of the government's evidence.

Wednesday, October 08, 2014

10th Circuit Job Opening

The Tenth Circuit Court of Appeals in Denver has announced it is seeking a graduate of an accredited law school to serve as Counsel to the Clerk. The position is open until filled, but preference will be given to applications received by October 24, 2014. For a full description of the position, including representative duties, salary range, qualifications, and how to apply, see the posting at the Tenth Circuit's website, here.

Tuesday, October 07, 2014

Identifying the Culprit: Assessing Eyewitness Identification

A new book on eyewitness identification is available for free download from National Academies Press. There's also an interactive infographic highlighting key points from the book.


Identifying the Culprit: Assessing Eyewitness Identification (2014)
Committee on Scientific Approaches to Understanding and Maximizing the Validity and Reliability of Eyewitness Identification in Law Enforcement and the Courts; Committee on Science, Technology, and Law; Policy and Global Affairs; Committee on Law and Justice; Division of Behavioral and Social Sciences and Education; National Research Council


Eyewitnesses play an important role in criminal cases when they can identify culprits. Estimates suggest that tens of thousands of eyewitnesses make identifications in criminal investigations each year. Research on factors that affect the accuracy of eyewitness identification procedures has given us an increasingly clear picture of how identifications are made, and more importantly, an improved understanding of the principled limits on vision and memory that can lead to failure of identification. Factors such as viewing conditions, duress, elevated emotions, and biases influence the visual perception experience. Perceptual experiences are stored by a system of memory that is highly malleable and continuously evolving, neither retaining nor divulging content in an informational vacuum. As such, the fidelity of our memories to actual events may be compromised by many factors at all stages of processing, from encoding to storage and retrieval. Unknown to the individual, memories are forgotten,reconstructed, updated, and distorted. Complicating the process further, policies governing law enforcement procedures for conducting and recording identifications are not standard, and policies and practices to address the issue of misidentification vary widely. These limitations can produce mistaken identifications with significant consequences. What can we do to make certain that eyewitness identification convicts the guilty and exonerates the innocent?

Friday, October 03, 2014

U.S. v. Powell, 2014 WL 4670899 (9/22/14) (Colo.) - Mr. Powell was convicted of eleven counts of uttering or possessing forged checks, in violation of 18 USC § 513(a), with respect to his deposit of checks stolen from the US mail into various bank accounts he held. He maintained on appeal that (1) the indictment was invalid for failure to charge an offense, (2) the evidence and instructions unconstitutionally amended the indictment, and (3) there was insufficient evidence to support his convictions. The Tenth rejects the facial invalidity of the indictment argument, concluding the indictment (1) identified all relevant checks with sufficient specificity to enable a future double jeopardy defense and (2) gave fair notice that the forged checks were "of" a federally insured bank operating in interstate commerce. With respect to the variance and sufficiency of the evidence arguments, the Tenth interprets the "of" in the statute to require that a forged check be "of" a drawee bank that is federally insured, not "of" such a depository bank. Because there was no evidence on a number of counts of conviction that any of the forged checks' payors, payees, or drawee banks are organizations operating in interstate commerce, the court finds the plain error standard is met as to those counts and reverses.
U.S. v. Nance, 2014 WL 4695068 (9/23/14) (OK) - Mr. Nance was convicted of multiple counts of transporting child pornography and receiving or attempting to receive child pornography. He argued that; 1) the district court erred in admitting evidence of his uncharged bad acts under Federal Rule of Evidence 404(b)(2); and 2) there was insufficient evidence for a jury to find that he attempted to receive child pornography. The 10th affirmed his conviction because; 1) the trial court gave a limiting instruction to which Mr. Nance did not object and he could have - but didn’t - ask for this instruction each time the bad act evidence was allowed; and 2) the government was not required to prove that Mr. Nance knew that the downloaded file contained child porn - rather it had to prove that he believed the file contained child porn, which it did.

Wednesday, October 01, 2014

New hurdle for preserving challenges to variances

U.S. v. Riggins, 2014 WL 4637960 (9/18/14) (Kan.) (unpub'd) - A worrisome preservation issue here. The 10th characterizes as procedural Mr. Riggins' argument that the district court did not provide sufficiently compelling justifications for the degree of an upward variance. Because of this characterization, the 10th said Mr. Riggins had to raise the "sufficiently compelling" argument in the district court, which he did not. Ordinarily a substantive-reasonableness argument doesn't have to be raised post-sentence. Plain error review followed. Arguably, the "sufficiently compelling" argument is more like a substantive-unreasonableness challenge. And other 10th Circuit judges might feel that way. But, in any event, this decision means that when defense counsel challenges the degree of variance, counsel should make a "sufficiently compelling" objection after the district court explains and announces its sentence, regardless of how vigorously counsel has argued that point before then.

Constitutional challenges to SORNA, child pornography statutes rejected

U.S. v. Brune, 2014 WL 4654572 (9/19/14) (Kan.) (Published) - For those of you who have been holding off on trying your SORNA or child porn cases in hopes that the 10th would find the relevant statutes unconstitutional, you might have to go to Plan B.

(1) It is proper pursuant to the Necessary and Proper Clause to apply SORNA to someone convicted of a federal sex offense who finishes serving his sentence, including his supervised release term, and then fails to update his registration . There's no need for any interstate connection. The 10th says U.S. v. Kebodeaux, 133 S. Ct. 2496 (2013), which upheld sex registration requirements on someone convicted of a military sex offense, requires this result. When Mr. Brune was convicted in 2001 he was subject to the Wetterling Act sex registration requirements and then he was subject to the SORNA registration requirements when that Act came into effect in 2006. Because of those requirements he was never unconditionally released from federal oversight. First, the child porn statute Mr. Brune was convicted of violating in 2001 was a valid exercise of the Commerce Clause to regulate interstate trafficking of child porn. Second, SORNA's registration requirements are a limited and rational extension of congressional power, as permitted by the Necessary and Proper Clause.

(2) 18 U.S.C. § 2252A(a)(5)(B), which prohibits possessing, or accessing with intent to view, materials containing child porn images, is not facially unconstitutionally overbroad. The 10th concedes an imprecise law that criminalizes access to Lolita or Woody Allen's Manhattan would be unconstitutional. But here Mr. Brune did not show any impermissible applications of § 2252A(a)(5)(B) would be substantial in comparison to the unprotected criminal speech, which is child porn. Mr. Brune contended the provision could reach protected speech because it doesn't require that the defendant specifically intend to view a child porn image, only the material containing the child porn. The 10th didn't think Mr. Brune came up with any examples of constitutionally valuable speech that would be punishable under the provision. Mr. Brune also contended the phrase "any other material" was expansive enough to sweep in broad categories of media protected by the First Amendment to the point that just looking at the internet would be a violation because the viewer knows it contains child porn somewhere in there. The 10th indicates this would raise a constitutional issue, but the 10th interpreted "any other material" in light of the words preceding it under the ejusdem generis principle---the broad word should have a meaning no more expansive than the more definite words accompanying it, in this case: "book, magazine, periodical, film, videotape and computer disk." So "material" only refers to "concrete forms of media that are used to capture, store, or deliver information as a means of communication"---"tangible illustrations of media, not mediums themselves." So "material" doesn't mean the internet. Once the internet is excluded from the definition, the inclusion of any other possible material wouldn't create a realistic danger of chilling protected speech. That downloadable images on the internet are automatically stored in a computer cache without the computer user necessarily knowing that doesn't raise a problem, the 10th says. The government still must prove the defendant knowingly accessed the particular URL. Without a pattern of child-porn-related searches immediately preceding the creation of the images it would be hard for the government to prove its case. Plus the statute requires the offender to know the material contains child porn.

Judge Phillips concurs in part and in the judgment. He sees no need for the 10th to go through the folderal of a constitutional analysis of the child porn statute. He believes § 2252A(a)(5)(B) requires the defendant to intend to view the child porn itself, not just the material containing the child porn. Without deciding the issue, the majority indicated the statute's language might not require such an intent. Judge Phillips relies on the legislative history for his interpretation. His interpretation eliminates the constitutional problem. Intentionally viewing child porn is not entitled to First Amendment protection.

Only "true threats" may be constitutionally prohibited, Tenth holds

U.S. v. Heineman, 2014 WL 4548863 (9/15/14) (Ut.) (Published) - The 10th decides an issue in the defendant's favor that the Supreme Court in Elonis v. U.S., will resolve this term: whether 18 U.S.C. § 875(c) violates the First Amendment because it criminalizes making a threat without an intent that the recipient of a message feel threatened. The 10th justifies jumping the gun on the Supreme Court on the grounds that Mr. Heineman might have to wait until next June for the Elonis decision and in the meantime he would be suffering under the "not insignificant sanction" of probation and the restrictions of civil liberties attendant to a felony conviction.

In this case Mr. Heineman defended on the ground that his Asperger's Disorder impaired his ability to understand that others might understand his e-mail to be threatening. First, the 10th reads 10th precedent as not requiring proof of an intent that the victim feel threatened. Next, the 10th dissects its precedent to conclude the 10th has not yet made a First Amendment ruling with respect to § 875(c). This discussion could be useful when we try to interpret 10th precedent as not foreclosing our positions because the 10th cases did not squarely address the issue. Then the 10th holds that Virginia v. Black, 538 U.S. 343 (2003), (anti-cross-burning statute is constitutional if it requires an intent to intimidate), requires the holding that § 875(c) without a subjective intent requirement violates the First Amendment. Only "true threats" may be constitutionally prohibited. True threats under Black include an intent to place the victim in fear. Concurring in the judgment, Judge Baldock concludes § 875(c) requires an intent to instill fear and so there's no need to address the First Amendment issue. A "threat" implies such an intent. He interprets 10th precedent as not addressing the statutory interpretation issue. He also sees no need to hurry up and decide the issue at all since the Supreme Court will decide it soon enough and Mr. Heineman is on probation, not in prison.

Venue Proper in District in which SORNA Defendant "Abandoned" Residence

U.S. v. Lewis, 2014 WL 4823594 (9/30/14) (KS) Published - Mr. Lewis asked the court to decide whether venue was proper in the departure district - Kansas - for the federal crime of knowingly failing to register as a sex offender after traveling in interstate commerce. Mr. Lewis last registered in Kansas. He left there to start over in Georgia. On his way east he stopped in Missouri to visit relatives. In Georgia, after living in a homeless shelter for 6 months, he found steady work and had plans to marry. He did not register in either Missouri or Georgia. The court ruled that venue in Kansas was proper. An obligation to report under § 16913(c) arises as soon as the person "abandons" his former residence. The court did point out that it was not establishing a mandatory federal reporting obligation in the departure district - a person can update his registration by contacting either the departure jurisdiction or the arrival jurisdiction. However, when the person doesn’t do one or the other then he has violated the federal statute in both places and venue lies in either.

Tuesday, September 23, 2014

Fractured Panel Suppresses Money Found in Truck

U.S. v. $85,688.00 in United States Currency, 2014 WL 4237377 (8/28/14) (Ut.) (unpub'd) - Three judges finding reasonable suspicion to stop Mr. Wiley, two judges finding there was reasonable suspicion to continue investigating a registration offense for 16 minutes and two judges finding reasonable suspicion of drug trafficking justifying detention of Mr. Wiley's truck for a dog sniff adds up to suppression of the money found in the truck. How did this happen? Two judges found a violation of the Fourth Amendment for two different reasons.
All the judges agreed that the Missouri license plate "not on file" response to the trooper's inquiry justified initially stopping the truck. Judge Phillips believed that the reasonable suspicion of a registration violation dissipated when the trooper saw or should have seen the truck's recently issued current license plate and registration tab. The judge also found the reasonable suspicion the truck was stolen dissipated when Mr. Wiley provided the original motor vehicle title receipt showing he owned the truck. This dissipation occurred before the officer obtained enough evidence of drug-related activity to justify further detention. Importantly, the judge placed on the officer an obligation to determine without unnecessary delay whether the "not on file" response arose from innocent or criminal acts. The Fourth Amendment obligated the officer to look carefully at the license plate, not just glance at it, as he did. There was no evidence the plate or tab were forged. Because the plate and tab were no more than two weeks old, it made little sense that Mr. Wiley might have been driving on a previous owner's plates and registration, especially since the response was "not on file" rather than listing the previous owner's name. Likewise, if the truck were stolen, the record would show the real owner's name, not say "not on file." Judge Phillips also finds Mr. Wiley sufficiently preserved the contention the title receipt dissipated reasonable suspicion that the truck was stolen, even though he "could have more specifically argued this point."

Judge Ebel disagrees with Judge Phillips that the Fourth Amendment required a more vigilant inspection of the license plate. An officer doesn't have to use the least intrusive means of investigation, Judge Ebel opines. The judge distinguishes this situation from situations in other cases where the source of the officer's misinformation was a faulty, visual observation. In sum, it was okay for the officer to make the inquiries he did about travel plans, etc. and detain Mr. Wiley for 16 minutes. Judge Ebel found, however, that at the end of those 16 minutes the suspicions justifying the stop had dissipated and there was no reasonable suspicion of drug-related activity to justify detention for a dog sniff. The coffee cup, energy drink, hanging shirts, discarded wrappers and cell phone charger contributed nothing. These circumstances "have become so ubiquitous in interstate travel that they are simply not probative one way or another." Also the officer's belief that the $5,000 Mr. Wiley said he paid for the truck was way below what it was worth and therefore suspicious was not objectively reasonable, given that the title receipt indicated the truck was 6 years old with more than 67,000 miles on it. Mr. Wiley's nervousness was also meaningless because the officer didn't indicate it was extreme. Fumbling the phone while looking for a number wasn't extreme nervousness. Only partially rolling down the driver's window and refusing to open the truck door amounted to refusing consent to search the vehicle, which cannot be used as a factor in the reasonable suspicion calculus. "Very little weight" went to the presence of an aerosol can of Fabreze because there was no evidence it was used. Air fresheners are suspicious if used, not if they are not. Plus the Fabreze could be explained by the smelly endeavor of Mr. Wiley's cross-country trip in a "lived-in" truck. Mr. Wiley's plans were neither inconsistent nor implausible, although they may have been unusual, which does not support reasonable suspicion. Mr. Wiley said he was driving from Missouri to California to visit friends and family after having been laid off from his job. He gave the officer names and numbers of the people he would visit. The failure of those people to answer the phone when called was not suspicious, given that "in the days of mass-telemarketing and caller ID, many of us screen unknown calls." Traveling on I-80, rather than taking the more direct route on I-70, was explained by Mr. Wiley's desire for a more scenic route, since his unemployment gave him the luxury of time to make the trip longer. Judge Ebel was not impressed by the officer's claim that I-80 was not beautiful. "Implausibility must be judged by objective factors, not according to whether the individual officer would have taken the same route." Mr. Wiley's prior arrest for marijuana and paraphernalia possession carried little weight where, as here, there were no other indicia of criminal activity. And, besides, the arrests were 7 years old, not convictions and not for trafficking. Mr. Wiley didn't lie about his prior arrest, since he was cut off before he could complete his explanation. Finally, Judge Ebel noted the lack of any evidence of hidden compartments or drug smell. The lack of especially incriminating factors should not be excluded from the reasonable suspicion analysis, he says.

Chief Judge Briscoe dissented. She agreed with Judge Ebel regarding the initial 16-minute detention. The suspicion generated by the "not on file" response was not dissipated until the officer could check the VIN numbers against the title receipt. She agreed with Judge Phillips that there was reasonable suspicion of drug trafficking after those 16 minutes. She felt traveling to help a sick aunt was not suspicious. But she did feel going out of his way to view scenery on I-80, a major route for drug transportation, and going to the San Francisco Bay area, a known source of high grade marijuana, were reasonable-suspicion factors. Judge Briscoe indicates Mr. Wiley had prior convictions, not just an arrest, for marijuana and drug paraphernalia possession. She counted these heavily together with what she believed was Mr. Wiley's attempt to conceal the convictions. She also counted against Mr. Wiley his rolling down his window only a few inches in conjunction with the Fabreze. This suggested an attempt to hide a drug smell. She agreed with Judge Ebel's assessment of the energy drink, coffee cup, nervousness and $5,000 price of the truck. And Mr. Wiley's unemployment also is irrelevant, Judge Briscoe believes. But, all in all, although the issue was close, there was reasonable suspicion of drug-related activity, the judge concludes.

Trial Court Did Not Abuse Its Discretion in Denying Continuance Requests, Granting One Minimal Continuance

U.S. v. Stewart, 2014 WL 4251609 (8/29/14) (Col.) (unpub'd) - The 10th holds the district court did not abuse its discretion in denying 2 continuance requests and in only granting a 6-day continuance in response to another continuance request. (1) The request for 90-120 days to interview a potential government "mystery witness" and a witness the BOP couldn't locate did not provide sufficient explanation why the request outweighed the interest of the public and Mr. Stewart's co-defendant in a speedy trial, given the 3 & 1/2 months the defense already had to interview the witnesses. That the case was designated complex did not alone require an ends-of-justice continuance. (2) There was no need for more time to interview witnesses on the government's witness list, since the court ordered the government to afford the defense an opportunity to interview them. Another witness the defense wanted to interview would only be called against the co-defendant. As for the rest of the witnesses, Mr. Stewart didn't show they would provide new information such that it would outweigh the "strong" public interest in a speedy trial or that denying a continuance would cause a miscarriage of justice. (3) The 6-day continuance was long enough despite the co-defendant's sudden decision a week before trial to testify against Mr. Stewart and co-counsel's pneumonia. It is not enough for the defense to identify an event and add that counsel needed more time to prepare because of that event. Counsel didn't explain how interviewing additional witnesses would have provided more information beyond mere credibility attacks, which Mr. Stewart was able to muster "convincingly" with the 6-day continuance. Plus counsel didn't say how much time they needed or that he couldn't try the case without co-counsel.

The 6-day continuance was also not an abuse of discretion outside the Speedy Trial Act ("STA") context, the 10th holds. Mr. Stewart did not show what favorable evidence he would have discovered with a longer continuance. The co-defendant did not provide unique testimony. Another witness testified to facts that indicated Mr. Stewart acted deliberately [i.e, after a pause], rather than with passion that would have justified a manslaughter verdict sought by the defense. Mr. Stewart didn't show he changed his defense theory after learning the co-defendant would testify. During the 13 days between the co-defendant's change of heart and trial, Mr. Stewart had access to government witnesses and the co-defendant's criminal history and pretrial statements. Defense counsel could have anticipated the change of heart before it happened because that sort of thing is "not uncommon." Counsel was able to extensively cross the co-defendant at trial. Counsel, who "spearheaded" the defense, didn't show why he needed a longer continuance to make up for co-counsel's absence. Finally, a longer continuance would have inconvenienced the parties, since the district court claimed a longer continuance would require it to schedule the trial 13 months later.
Lewis v. Clark, 2014 WL 4197340 (8/26/14) (Wyo.) (unpub'd) - The prisoner sufficiently alleged a retaliation, First-Amendment violation where he filed a number of grievances and an officer, who could have known about the grievances, refused to let him use the law library, even though it was his turn to do so. The allegations that the officer was retaliating against Mr. Lewis for his grievance-filing "may be improbable, but not implausible," the 10th concludes.

Rantz v. Hartley, 2014 WL 4237335 (8/28/14) (Col.) (unpub'd) - Mr. Rantz's pro se motion in state court did not toll the running of the statute of limitations where the court refused to consider the motion because Mr. Rantz was represented by counsel at the time.
Johnson v. Patton, 2014 WL 4377708 (9/5/14) (Okl.) (unpub'd) - A state habeas petitioner challenges the crediting of jail and street-time and gets a remand. The district court denied relief on the grounds that Mr. Johnson only raised state law claims. But the 10th points out that whether the state has created a liberty interest in certain credits depends on an analysis of state law and actions. To the extent Mr. Johnson is entitled to credits because they were awarded or apply by operation of state law, he has a liberty interest by Oklahoma law. With respect to time served in jail prior to trial, state law says the defendant "will automatically receive credit for" that time. Plus it was corrections department policy to apply jail-time credit if the sentencing judge didn't deny it. Since the trial court did not deny it, nothing in the record indicated Mr. Johnson was not entitled to the credits. As to whether Mr. Johnson received those credits, the record indicated only that the relevant records were lost in a fire. On remand the district court would need to decide if Mr. Johnson received the credits he was due and, if not, whether the state deprived him of those credits through a constitutionally sufficient procedure.

As for street time, i.e., time spent on parole, Mr. Johnson had a due process liberty interest in the state applying street-time credits to which he was entitled. While it was in the governor's discretion to decide whether or not to grant Mr. Johnson street time, the governor actually did award him 10 years of street time credit. So he is entitled to that credit. Mr. Johnson and the state dispute whether state law requires that time to be credited against his 37-year sentence from which he was paroled or just the year sentence imposed when the governor revoked parole. The 10th remanded for the district court to analyze the state law question, [which the 10th suggests the district court could certify to the Oklahoma Court of Criminal Appeals], and decide if Mr. Johnson has a due process interest in having the credits applied to the 37-year sentence. If he had such an interest, then the d. ct. must decide if Mr. Johnson was deprived of that interest through a constitutionally sufficiently procedure.

In a footnote the 10th observes that, since Mr. Johnson did not have a Sixth Amendment right to counsel in a civil case, he also had no Sixth Amendment right to go pro se. But he does have a federal statutory right under 28 U.S.C. § 1654 ("in all courts of the U.S. the parties may plead and conduct their own cases personally") to go pro se in a civil case. So the 10th directed the d.ct. to consider any renewed request to go pro se. It had previously denied Mr. Johnson's pro se requests. On the other hand, the 10th notes counsel must be appointed under Rule 8(c) of the Rules governing § 2254 cases, if the district court holds an evidentiary hearing.