Falsehoods and Omissions in Search Warrant were Immaterial

US v. Freerksen, No. 11-6044 (10th Cir. 1/24/12) (unpublished): Defendant entered conditional plea to possession of child pornography. She challenged the search of the digital camera and computer seized from the home she shared with her husband and co-defendant, Dean Freerksen, in which digital pictures of the abuse of an 11-year-old victim were found.

She argued the warrant was defective in that: 1) it stated that the victim said she was raped by three males, but it did not state that she thought the males were juveniles; 2) she described the vibrator used on her as being white and six inches long, but did not include her statement to the detective that it was dark and she couldn't see what was being done to her; and 3) the warrant stated she said pictures were taken with a digital camera, but failed to state that this was a statement made by the victim to her mother, who then told the detective. The trial court concluded the falsehoods and omissions were immaterial and the search was valid. The COA agreed. The age of the males did not make any less likely there would be incriminating evidence; probable cause did not depend on the description of the vibrator; and the failure to state that the girl told her mother that the camera was used to take pictures did not undermine the probable cause to seize the camera because there was no claim that the girl did not make the statements to her mother. Judgement affirmed.

US v. Freerksen, III, No. 11-6059 (10th 1/24/12)(unpublished): Companion case to above. This defendant also raised additional challenges to the validity of the search. It did not violate the Fourth Amendment for the warrant to be issued by a magistrate who had previously prosecuted the defendant for sex offenses when he was a prosecutor. It was not unreasonable to sentence Mr. Freerksen more harshly than his wife (he got 50 years, while she got 10 as a result of a plea agreement). His other argument is improperly based on the wrong guideline; he was sentenced pursuant to the child exploitation guideline and not the one applying to simple possession of child porn. A couple of other issues are cursorily rejected

Inmates Get Only One Bite At RDAP Apple

Kyles v. Chester, No. 11-3226 (10th Cir. 1/25/12) (unpublished): Tenth Circuit upholds Bureau of Prisons' policy against allowing an inmate who has previously completed the Residential Drug Abuse Program (RDAP) and therefore received a sentence reduction from obtaining a second RDAP reduction in sentence in a subsequent case.

Capital Habeas Petitioner Established He Was Abandoned by his Counsel and Cause for Default

Maples v. Thomas, 2012 WL 125438 (1/18/12) - This case shows that if circumstances are extreme enough even the S. Ct. will take pity on a capital habeas petitioner at least by a 7-2 vote. In this case, the petitioner procedurally defaulted his claims when no timely notice of appeal of a state district court habeas denial was filed. The petitioner's pro bono lawyers quit their firm, but did not tell the court or the petitioner that they had. The court sent news of the denial to the firm and local Alabama counsel. The firm's mail room sent the notice back without opening the envelope. The court clerk did nothing when it was returned. The local counsel did nothing because he had made it clear to the firm lawyers that he would leave everything about the case up to them. The S. Ct. held the petitioner had established cause for the default because his attorneys had abandoned him, but he did not learn of their abandonment until it was too late to appeal. These facts saved the case from application of the usual rule that neglect by habeas counsel is not enough to establish cause.

Justices Scalia and Thomas dissented on the grounds that the firm and local counsel were technically still representing the petitioner. This decision will lead every clever habeas petitioner to claim that her/his habeas attorney performed so badly that the attorney had abandoned the petitioner. The flood gates will open. Also interesting is the majority spent several pages noting how pathetic the Alabama capital counsel system is. At the time of the defendant's trial, capital trial counsel needed no particular expertise, and were paid $40 an hour capped at $1,000 per case. There is no provision for appointed habeas counsel in capital cases in Alabama.

SCOTUS Reverses Denial of Qualified Immunity; Cops Reasonably Entered Home When Parent Refused to Talk to Them

Ryburn v. Huff, 2012 WL 171121 (1/23/12) - A unanimous per curiam reversal of a 9th Circuit § 1983 civil rights case. The officers were entitled to qualified immunity because an officer could reasonably believe it was necessary to make a warrantless entry of a home to make sure no violence occurred in the following circumstances. Officers investigated a rumor that a high school student had written a letter threatening to "shoot up" the school. When the officers went to the boy's home, no one answered the officers' knocks after they announced they were police. No one answered a call to the home phone. The boy's mother answered the officers' cell phone call, told them she and her son were inside the home, but then she hung up on them. Later the mother and son walked out of the house. The mother refused to allow the officers to discuss the threat matter inside the house. When an officer asked the mom whether there were any guns in the house, she immediately turned around and ran into the house. The officers followed her. The Court emphasized the circumstances should be analyzed in their entirety and without second-guessing officers. It didn't matter that the mom had a right to refuse to answer questions and to go into her house. It was objectively reasonable to think violence was imminent.

OK for Oklahoma to Increase Capital Defendant's Burden of Proving Mental Retardation

Ochoa v. Workman, 2012 WL 130718 (Okl.) (Published) - In this Oklahoma capital case, it was not unreasonable for Oklahoma courts to approve the district court's instruction to the jury that it must determine whether the petitioner is currently mentally retarded, rather than was mentally retarded at the time of the offense. It was reasonable for the state to consider mental retardation to be a static concept. As such, the petitioner had a harder time proving his retardation because his IQ improved over time. The petitioner's Atkins procedural issues meet the stringent successive petition standards because they were based on Atkins, which was decided after he filed his first habeas petition. But the petitioner loses on the merits. He voluntarily chose to appear before the jury in prison garb. There was no evidence the jury saw the shock sleeve attached to the petitioner. It was not prejudicial enough that the jury heard the defendant had been convicted of some undisclosed type of crime.

Albuquerque's Attempt to Ban Sex Offenders Completely from Public Libraries Unconstitutional

Doe v. City of Albuquerque, 2012 WL 164442 (1/20/12) (N.M.) (Published) - City's denial of library access to sex offenders struck down. The 10th strongly hinted it might approve such a denial if the record below was better. The city took the litigation strategy that, since the challenge was a facial one, it had no burden to show its ban was narrowly tailored and left open alternative channels of communication. So it refused to submit any evidence on those matters. The 10th said the presumption of constitutionality did not apply where the First Amendment was implicated. So it was not enough for the city to imagine a hypothetical scenario where the ban could be validly applied, as the city claimed. The 10th concluded by repeating the false notion that sex offenders have a high rate of recidivism and then saying: "our conclusion does not reflect a pronouncement on the ultimate legality or merit of the city's ban. We are sympathetic to the city's desire to ensure public libraries provide a safe, welcoming environment and can imagine an effort to restrict library access of sex offenders succeeding through a revised ordinance where the restriction satisfies the time, place and manner test." But the 10th reluctantly conceded it was constrained by the record to affirm overturning the ban

An important case regarding the categorical approach and defense counsel's concessions.

U.S. v. Ventura-Perez, 2012 WL 130716 (1/18/12) (Col.) (Published) - Here the issue was whether the defendant was convicted of burglary of a dwelling under § 2L1.2's definition of crime of violence. A statute may be "divisible" and therefore appropriate for applying the modified categorical approach when the statute contains statutory phrases that cover several crimes, some of which are crimes of violence and some of which are not, even when the phrases are not in separate sections, subsections or paragraphs. In this case, the burglary statute referring to burglary of structures adapted for overnight accommodation is divisible from the further phrase "and each structure appurtenant to or connected with the structure," which could include a shed far from the dwelling. Defense counsel's answer of "yes, but . . ." in response to the court's question; "was there evidence in his guilty plea or in the charge that the structure involved was an apartment?" was a concession that the defendant had admitted in the plea colloquy that he had burglarized an apartment, which qualifies as a dwelling under § 2L1.2. It doesn't matter that there were no documents before the d. ct. establishing the offense was a burglary of an apartment. It also doesn't matter that appellate counsel submitted documents showing counsel's supposed concession was inaccurate. The 10th never heard of a reversal of a judgment because the d. ct. relied on inaccurate statements of counsel. "Courts could not function properly if concessions by counsel cannot be relied upon." To top it all off, in a footnote, the 10th says, even if a defendant technically does not qualify for a crime-of-violence enhancement because of the fortuity of the details of a statute's language, a d. ct. can upwardly vary based on the real facts of the prior offense. And the defendant did not qualify for a downward variance for differences in fast-track policy among districts because he did not show he would be eligible for fast-track treatment in another district.

U.S. v. Games-Perez, -- F.3d --, 2012 WL 171873 (10th Cir. 1/23/12) (CO) - the district court properly denied Mr. Games-Perez's motion in limine claiming he did not know he was actually a felon while on probation for a felony offense and thus could not be convicted under § 922(g)(1) for felon in possession. Mr. Games-Perez pleaded guilty to felony attempted robbery and was to serve a 2-year term of probation, after which he would be allowed to withdraw his guilty plea and have the charges dismissed. The COA finds it was made clear to him that possession of a firearm would violate his probation and that he knew he was losing the benefit of his bargain when he picked up a gun while on probation. Thus his case falls under Capps and the only knowledge required was that the instrument possessed was a firearm.

Rhodes v. Judiscak, -- F.3d --, 2012 WL 171917 (10th Cir. 1/23/12) (NM) - Mr. Rhodes is denied the habeas relief he sought under § 2241--a declaration that his sentence was excessive--because he is no longer in prison. The COA lacked authority to grant Mr. Rhodes a shorter term of supervised release. Success by Mr. Rhodes in getting the declaration he wanted may or may not have aided him in a future petition seeking a shorter term of supervised release and thus the Tenth decides his petition is moot. It recognizes that there is conflicting circuit authority on this issue.

Attaching GPS Device to Car Is a Search, US Supreme Court Says

US v. Jones: http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf The Court unanimously holds that the attaching a GPS device to a car and monitoring its movements for 28 days was a search. However, the "unanimous" court produced multiple opinions.
Scalia, joined by Roberts, Kennedy, Thomas and Sotomayor, go with an "original intent" rationale, stating: "It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted." Because the government trespassed on private property to install the device, it was a search. This does not do away with the Katz reasonable expectation of privacy test; that test augmented the common-law trespassory test that preceded it.
Sotomayor's concurrence addresses some of the search and seizure issues associated with electronic communications and media, noting that "More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expecta­tion of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."
Alito, with Ginsburg, Breyer and Kagan, would stick with the Katz expectation of privacy test. In their view, the problem was how long the government monitored the vehicle, saying that, in light of government failure to to enact statutes regulating GPS technology for government use, "The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated. Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U. S., at 281–282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy." Thus, I guess in the Alito, et al., view, if state and federal governments had laws in place saying that the government could monitor everyone for as long as they wanted whenever they wanted, there would be no reasonable expectation of privacy any more.

A few 10th Cir. cases, S. Ct. news and a note regarding the amendments to the 10th Circuit rules.

First, the 10th:

U.S. v. Sunday, 2012 WL 11245 (1/4/12) (Wyo.) (unpub'd) - The 10th finds plain error reversal is warranted where the d. ct., as a supervised release condition, prohibited the defendant, who had been repairing computers for a living, from possessing a computer that was not authorized by the probation officer and imposed monitoring and surveillance conditions on any computer he came into contact with. The d. ct. did not make the findings required to justify an occupational restriction. The defendant committed some of his fraud through the use of a computer, but not primarily. Restrictions on computers, which are used for routine activities, should be the minimum possible to protect the public. The 10th cited favorably a 3rd circuit case that said a plainly erroneous supervised release condition will inevitably affect substantial rights under the 3rd prong of the plain error test. The 10th also directed the d. ct. to revisit its mental health evaluation and treatment conditions consistent with its decision in U.S. v. Mike, 632 F.3d 686 (10th Cir. 2011).

U.S. v. Robles, 2012 WL 29044 (1/6/12) (Kan.) (unpub'd) - Under plain error review [the defendant only contested whether his conduct constituted a violation of the law], the 10th says it is okay to designate a positive urine test for cocaine as a Grade B, not Grade A, violation because 21 U.S.C. § 844 would have raised the offense of possession of cocaine to a felony by virtue of the defendant's underlying federal conviction for cocaine distribution.

U.S. v. Ferguson, 2012 WL 29047 (1/6/12) (Ut.) (unpub'd) - Another preservation cautionary tale. Defense counsel's assertion before the d. ct. that a lab test showed some of the seized ecstasy pills weighed less than what the guidelines presumed they weighed was inconsequential because counsel presented no actual evidence in that regard. Attorneys' statements are not evidence.

S. Ct. News:

Florida v. Jardines, 2012 WL 28952 (1/6/12) - The S. Ct. grants cert on the issue whether the police must have probable cause before using a dog sniff at the front door of a suspected "grow house." The Fla. S. Ct. held the dog sniff was a search under the 4th Amendment. That decision may very well be in trouble.

Cash v. Maxwell, 2012 WL 33989 (1/9/12) - A rare denial of cert where the 9th granted a habeas petition prompts an angry dissent by Justice Scalia joined by Justice Thomas and a response by Justice Sotomayor by herself. The 9th granted relief because the state court's finding that there was no credible evidence a jailhouse informant lied at the petitioner's trial was unreasonable. The witness was "one of the most notorious jailhouse informants in the history of Los Angeles County." Justice Sotomayor described Justice Scalia's dissent as insisting it was possible the informant told the truth this one time, despite all his other false testimony. She noted cert review was only supposed to be for important questions of law, not to correct fact-based errors. She pointed out the 9th recognized the stringent AEDAP standard of review. Justice Scalia felt the 9th had not abided by that standard and that, besides, the 9th held there was a due process violation without requiring that the prosecution know the witness was lying. He complained that the S. Ct. has had to constantly rebuke the 9th in fact-bound cases because the 9th has repeatedly second-guessed state courts in habeas cases.

10th Circuit Rules:

The 10th Circuit has a new version of its rules that is much like its old rules. The only real change is that it has now incorporated in the rules its standing General Orders, such as its order regarding electronic filing.

US v. Bryant, No. 11-7029, 1-5-12 (Okla) - Woman whose sister worked at a tribal casino as a cashier won 90 cents on a slot machine. Her sister paid her $4,000.91, which they split. They were indicted for embezzlement from the casino. Woman claimed that she did not violate the statute (18 USC 1168) prohibiting employees of tribal casinos from stealing from them, and that the tribe was not the USA, so she didn’t steal anything from the USA. Held: (1) woman was guilty of aiding and abetting her sister, who did work for the casino, so she was liable as a principal; (2) the casino sits on territory subject to the jurisdiction of the United States, so the offense was “plainly” against the USA; and (3) fact that she could have been prosecuted under a different statute makes no difference, and provides no basis for invoking the rule of lenity.

US v. Lamirand, No. 11-6033, 1/5/12 (Okla) - Defendant whose supervised release was revoked was sentenced to thirty days in prison, followed by a new term of supervised release of six months, violated supervised release conditions again. This time the court sentenced him to a year and a day in prison. Defendant claimed that he could only be sent to prison for six months. Wrong. He had been convicted of a Class D felony (pwid pot with a five-year max), so 18 USC § 3583 authorized a prison term of up to two years. The length of the supervised release term was irrelevant.

Defense Win: Appeal Waiver Did Not Preclude Challenge to Supervised Release Conditions; Condition was Unjustified

U.S. v. Lonjose, 2011 WL 6811038 (12/28/11) (N.M.) (Published) - A a defense rare victory in the 10th on appeal waiver and supervised release condition issues.

First, the 10th ruled the standard appeal waiver did not apply to an appeal of a modification of supervised release conditions. The waiver only applied to the right to appeal the initial judgment. The modification procedure is a distinct post-conviction proceeding, like a § 3582(c) proceeding, which creates a new right to appeal. We'll see if this ruling prompts the government to devise a new appeal waiver, especially given a footnote which states that more precise waivers have been found to waive post-conviction appeals.

Second, the record did not unambiguously support a finding of compelling circumstances that the defendant was a danger to his 6-year-old son so as to justify interference with the right to familial associations by banning contact with his son and other minor male family members, absent written permission from the probation officer. That the defendant had sexually abused underage girls did not show he was a danger to underage boys. That the defendant could contact his son with the probation office's permission and that the district court told the probation office to "keep a close eye so that the defendant could have contact at the earliest opportunity" did not change the fact that the condition impermissibly infringed on the defendant's ability to freely associate with his family.

On Rehearing, Tenth Finds New Basis To Find the Escape is a Crime of Violence

U.S. v. Koufos, 2011 WL 6778133 (12/27/11) (N.M.) (Published) - The good news: the 10th actually grants a rehearing petition for this previously-reported case where the 10th had relied on facts, contrary to the categorical approach, to find the defendant's escape to fit within the riskiness residual clause of the § 4B1.2(a)(2) crime-of-violence definition.

The bad news: the 10th chooses a new ground to find the defendant's escape to be a crime of violence. The 10th decides the defendant violated the portion of 18 U.S.C. § 751(a) that prohibits "escape from the custody of an officer or employee of the U.S. pursuant to a lawful arrest," even though no judicial document ever mentioned this portion of the statute, based on the information's allegation that the defendant was arrested and taken to a federal courthouse for arraignment. The 10th holds, in agreement with a dissenting 6th Circuit judge, that that kind of offense requires affirmative action and likely poses a risk to the law enforcement officers and the public at large. The 10th notes the Sentencing Commission's stats cited in Chambers that indicate 15.4% of escapes from law enforcement custody resulted in injury.

Exclusion of Medical Necessity Defense to Charge of Failing to Report to BOP Upheld

U.S. v. Doles, 2011 WL 6880779 (12/30/11) (Wyo.) (unpub'd) - The 10th upholds the refusal to admit evidence to support a medical necessity defense to a charge of failure to report to BOP following sentencing. The 10th says a BOP letter acknowledging the defendant's serious medical issues and stating it would be able to provide the care he required demonstrated the defendant was not faced with an imminent harm involving a real risk of death or serious bodily injury. Because, if you can't believe what the BOP says, who can you believe? And the defendant was not entitled to a good faith instruction, despite his contention he believed his only chance to challenge his illegal conviction was to leave the country and make a documentary film through which he could point out his conviction's illegality. The defendant's contention did not negate his willful and voluntary decision not to report.