Thursday, February 12, 2015

Must Read Decision on Double Jeopardy, Restrictive Supervised Release Conditions, and Restitution

U.S. v. Dunn, 2015 WL 525698 (2/10/2015) (UT)(Published)(slip opinion here): A successful defense appeal on Double Jeopardy, unnecessarily restrictive supervised release conditions and restitution in a possession and distribution of child pornography case.

A jury convicted Dunn of possession, receipt and distribution of child pornography. He challenged the trial court’s jury instruction on distribution. That instruction told the jury that “when a person knowingly makes images available on a peer to peer file sharing network, such as Limewire, this is considered distribution of the images. The panel held that the instruction was proper because “active distribution or transfer of possession to another is not required to prove distribution under § 2252A(a)(2).”

Dunn also argued that his convictions for receipt and possession of the same illicit material violated the Double Jeopardy Clause. Applying the plain error standard of review, the panel agreed with Dunn and ordered the district court to vacate one of Dunn’s convictions.

Dunn challenged supervised release conditions that restricted possible future employment in his prior field of computers. The district court had ordered that he participate in the probation and pretrial services computer and internet monitoring program. This program imposed numerous “robust restrictions” on his use and access to both computers and the Internet and allowed Probation to monitor that use. Again, using plain error analysis, the panel held that the district court had violated its “mandatory” duty “to specifically find that [the occupational] restriction is minimally restrictive.” The panel emphasized that the circuit’s prior decisions “unambiguously require supporting findings when courts impose special conditions of supervised release.” It noted that the district court may have not even considered the effect of the computer monitoring program on Dunn’s “prospects for future employment or his ability to pay restitution to his victims.”

Finally, the panel set aside the district court’s restitution order because it violated the restitution analysis and rules in Paroline v. United States, 134 S.Ct 1710 (2014). The ubiquitous “Vicky”(represented by Paul Cassell and the University of Utah appellate law clinic) demanded Dunn pay $583,955 of the $1.3 million of damages she allegedly has suffered. According to Vicky, $583k is the amount of her total losses minus the amount of restitution she has garnered from other defendants. Dunn balked at this amount and asked the district court to compel her to “produce a more up-to-date economic report regarding damages and regarding the damages Mr. Dunn caused as a result of his underlying criminal behavior.” (Meaning that these reports did not clearly distinguish the primary harms associated with her original abuse from those secondary harms flowing from the dissemination of images of her online.) The panel found the district court should have granted Dunn’s request. It also ruled the court incorrectly found Dunn jointly and severely liable for the entirety of Vicky’s injuries because he was a “distributor” of her images. The trial court was wrong because it “clearly h[eld] Mr. Dunn liable for the conduct of thousands of geographically and temporally distant offenders acting independently, and with whom he had no contact, in contravention of Paroline’s guidance.”

Perhaps, most importantly, the panel commented that the district court unduly emphasized Dunn’s role as a “distributor” when not all distributors are on equal footing. Coming full circle back to the challenged instruction, the panel said that a jury found Dunn distributed the image by merely placing it into a shared folder on a peer to peer network. In assessing an accused’s relative role in the causal process for restitution purposes, the district court should consider the facts underlying that conviction—i.e., did the government show that others had actually downloaded files from the accused and, if so, had only one or two other people downloaded those images from him, or had hundreds or thousands over a period of years. The panel concluded that these factors are important to consider because “the clear rationale of Paroline is that a defendant should be held accountable for the measure of losses that he individually has caused.” Restitution should reflect the consequences of an accused’s own conduct and he should not be held accountable for those harms initially caused by the pictured person’s abuser.

Wednesday, February 04, 2015

One Shot, Only One 924(c) Violation

U.S. v. Rentz, 2015 WL 430918 (2/3/2015) (en banc) (UT)(published) (slip opinion here): After Rentz fired a single gunshot that wounded one victim and killed another, he was charged with two crimes of violence—assault and murder—and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Rentz moved to dismiss the second § 924(c) count. The district court granted his motion, holding that multiple § 924(c) charges arising from a single use of a firearm are impermissible. The government appealed the pre-trial dismissal of the second § 924(c) count. A 10th circuit panel reversed the district court order. The court then granted Rentz’s request for an en banc rehearing to determine whether he can be charged with two § 924(c) offenses for using a gun only once. Writing for the majority, Judge Gorsuch said the question presented was whether, as a matter of statutory interpretation, § 924(c)(1)(A) authorizes multiple charges when the parties admit there’s only a single use, carry, or possession. The opinion is quite detailed with in-depth discussions of grammar, units of prosecution, legislative history and the rule of lenity. Ultimately, the court decided that when a case involves only one use, carry or possession of a firearm, the government may "seek and obtain no more than one § 924(c)(1)(A) conviction."

Death Row Inmates' Challenges to Oklahoma Execution Method Rejected

Warner v. Gross, 2015 WL 137627 (1/12/15) (Okl.) (Published) (slip opinion here) - The 10th paves the way for Oklahoma's execution of Mr. Warner and three other death row prisoners due to be killed on or before March 5th. It refuses to grant a preliminary injunction to stop the impending executions based on a challenge to the use of midazolam [which Oklahoma wanted to use because it couldn't get the ol' tried and true sodium thiopental, which the manufacturers are refusing to provide for executions], and the execution protocol. The 10th did not find the requisite likelihood of success on the merits. Oklahoma investigated the horrifying execution experience of Clayton Lockett. The execution team over the course of nearly an hour made at least 12 attempts to get IV access to Mr. Lockett's cardiovascular system They thought they finally succeeded. They injected the midazolam and determined it had rendered Mr. Lockett unconscious. It then administered the paralyzing agent. Partway through the injection of the third drug that is supposed to induce cardiac arrest, Mr. Lockett suddenly began to move and said: "This sh.. is f....ing with my mind. The drugs aren't working." The team noticed a large area of swelling near the IV access point. The team tried to insert the IV somewhere else. They eventually terminated the execution process, but Mr. Lockett died 43 minutes after the midazolam was first injected. Mr. Warner was scheduled to be executed right after Mr. Lockett. But Oklahoma postponed his execution instead. The 10th described this whole experience as a "procedural disaster."

Oklahoma determined the problem with the Lockett execution was not the midazolam, but the failure to insert the IV properly and not properly determining if Mr. Locket was really unconscious. But, despite the problems, the concentration of midazolam in Mr. Lockett's blood was greater than the concentration required to render the average person unconscious. Oklahoma instituted new procedures so it could do a really bang-up job of killing people: a higher dose of midazolam and detailed procedures for establishing IV access, administering the chemicals and dealing with "mishaps." The plaintiffs contended midazolam has a ceiling effect [there's a certain dosage beyond which there's no incremental anesthesia effect] and a risk of paradoxical reaction [agitation, etc.]. The 10th observed that some risk of pain is okay. The plaintiffs had to show an objectively intolerable substantial risk of harm. Given the d. ct.'s rejection of the plaintiffs' experts' opinion and acceptance of the state's only expert [he was a dean after all] saying the dosage of midazolam would render people unconscious because there was only a ceiling effect for the spinal cord, not the brain, the plaintiffs were not likely to show an Eighth Amendment violation. The errors in the state's expert's testimony [misidentification of the reported dose range of midalozam and the federal agency responsible for certain standards and his incorrect claim about a certain chemical effect of the drug] were not sufficiently serious to render his testimony unreliable, the 10th finds. The 10th also affirmed the d. ct.'s conclusion that the new procedures would likely prevent any future problems with executions. And it was impressed by the fact that midazolam had been used "successfully" 12 times. Plus the plaintiffs had not met their burden to proffer alternative constitutional procedures that would kill them without pain. They suggested the use of drugs that were not available to the state. There is no requirement that a state's procedure have already been tried by many other states. Otherwise states would never be able to kill people in new ways. In a footnote, the panel notes that not one of the 10th Circuit judges requested an en banc poll on the questions presented.

Student Summarily Dismissed from Law School for Lying on Application Was Not Denied Due Process

Brown v. University of Kansas, 2015 WL 150271 (1/13/15) (Kan.) (unpub'd) (slip opinion here)- The 10th affirms the granting of summary judgment against a law student who claimed his expulsion from school for lying about his prior criminal record violated due process. In his law school application, Mr. Brown denied being convicted of any non-traffic offense. In fact, he had convictions for battery and a DUI. For some undisclosed reason, after being accepted and starting classes, Mr. Brown amended his application to disclose his prior convictions. The school sent a letter to Mr. Brown seeking a written response to its proposed dismissal from the school for lying on the application. Mr. Brown demanded a hearing. The 10th holds that there was enough due process basically because no purpose would be served by more process since Mr. Brown admitted to lying on the application and that was a proper ground for dismissal.

Court Rejects Argument that Condition of Supervised Release was an Improper Delegation of Authority

U.S. v. Richardson, 2015 WL 221612 (1/16/15) (Okl.) (unpub'd) (slip opinion here)- The supervised release condition that Mr. Richardson reside at a halfway house for up to 180 days at the direction of the probation officer was not a plainly erroneous delegation of authority to the probation officer. Mr. Richardson did not show the district court would have imposed a lower term at the halfway house without the delegation. Indeed, the court did Mr. Richardson a favor by giving the probation office a chance to cut short his 180-day term

Double Jeopardy Challenge to Retrial Rejected

U.S. v. Burciaga, 2015 WL 150344 (1/13/15) (N.M.) (unpub'd) (slip opinion here) - The 10th rejects a double jeopardy challenge to a retrial after the declaration of a mistrial. Mr. Burciaga testified at trial he pleaded guilty in other cases because he was guilty but didn't consider pleading guilty in this case because he was innocent. The following day on cross, the prosecutor asked: "If you say you refuse to accept a plea, why did your attorney propose a plea deal?" The defense objected. Judge Vazquez proposed a mistrial. The prosecutor opposed, saying he had an e-mail from defense counsel saying Mr. Burciaga would take a 5-year deal "in a heartbeat." The parties worked on a jury instruction, but ultimately the judge decided the question caused too much prejudice to be cured. The judge subsequently denied a defense motion to dismiss on double jeopardy grounds, contending the prosecutor deliberately caused the mistrial. The judge denied the motion, finding the prosecutor did not subjectively intend to force Mr. Burciaga to request a mistrial. The 10th acknowledged the question was more problematic than the classic prosecutor question: "What happened next?' But the record supported the judge's subjective-intent conclusion. Although the prosecutor was experienced, he just carelessly came to the conclusion after some inept research that Fed. R. Evid. 410 [prohibiting the admission of statements made during unconsummated plea negotiations] allowed the improper question. The prosecutor's remark during the first trial that he had to "fight and claw to get my case presented fairly," did not mean the government thought it had a weak case and would rather to try the case again. The prosecutor had an objective basis to believe the heroin distribution case was going well for the government. The fact that the government presented more incriminating evidence at the second trial than it did at the first didn't establish the prosecutor's bad motives either. Ultimately, the 10th says, it couldn't overturn the district court's view of the facts.

Pretrial Release Order for Non-citizen Drug Defendant Affirmed

U.S. v. Vasquez-Garcia, 2015 WL 170247 (1/14/15) (Kan.) (unpub'd) (slip opinion here) - The 10th affirms an alien meth defendant's release. Mr. Vasquz-Garcia had been a long-time permanent resident until he went to Mexico. Three years later he voluntarily returned to the U.S. after his green card had expired. The 10th refused to reweigh the lower court's flight risk determination, given Mr. Vasquez-Garcia's voluntary return knowing he was under indictment and his taking many steps towards renewal of his green card for which he was eligible. Nor did the 10th feel like reassessing whether Mr. Vasquez-Garcia posed a threat to potential witnesses

Summary Judgment for Officer Reversed in Civil Rights Case

Baig v. Hargis, 2015 WL 221610 (1/16/15) (Kan.) (unpub'd) (slip opinion here)- In a § 1983 case, the 10th reverses a summary judgment in favor of an officer. The 10th upholds the proposition that in determining whether there is probable cause an officer has an obligation to investigate relevant, easily accessible facts. In this case, a loss prevention officer ("LPO") at a Macy's store reported to the police that three people, including a woman who was possibly Asian, were acting as though they were going to shoplift some items [e.g. taking sensor tags off, stuffing a purse with stuff]. The LPO did not say any of them had left the store. When the officer arrived, he spotted Ms. Baig, who was Asian, getting into her car in the parking lot. Aside from her race, every other aspect of her appearance conflicted with the LPO's description of the Asian woman. She wore dress slacks, not shorts, a salmon/pink shirt with grey dots, not a peach shirt, and leather sandals, not flip flops. Her hair was down, not pinned up, did not wear sunglasses and had a brown, not a burgundy, purse. Nonetheless, the officer confronted her and got her to get out of her car. He then handcuffed her and told her she was under arrest. Within a minute the officer got a dispatch that all three suspects were still in the store. The 10th holds a reasonable officer would not have ignored all the obvious differences between Ms Baig and the suspect. At worst, the 10th says, given the lack of exigent circumstances, the officer maybe could have temporarily detained her while easily determining all the suspects were still in the store. Or he could have asked for permission to search her bag for stolen items. So the officer's conduct, as alleged by Ms. Baig, clearly violated the Fourth Amendment.

Drug Conviction Affirmed; Agent's "Expert" Testimony Ok'd; Prosecutor's Misstatements of Evidence in Closing Did Not Warrant Reversal; Defendant Waived Counsel for Sentencing

U.S. v. Vann, 2015 WL 221618 (1/16/15) (N.M.) (Published) (slip opinion here) - The 10th affirms a PCP conviction overseen by 10th Circuit Judge Kelly, sitting as a district judge by designation. Agent Small found on the train bottles of codeine without labels and bottles with PCP inside a gift-wrapped box Mr. Vann was carrying. Mr. Vann told the agent he knew there was codeine, but he did not know the box contained PCP bottles. At trial the parties disputed whether Mr. Vann knew he possessed the bottles of PCP. First, the 10th affirms a denial of a Batson challenge on the grounds that the judge's "streamlined" ruling was sufficient. The government justified its excusal of the only black venire member for the trial of a black man on the grounds that the juror didn't completely fill out his questionnaire, was not educated enough, was unemployed and seemed dazed and disengaged during voir dire. Before hearing from the defense, the court found these "were nonracial reasons that made sense." The defense contended the juror was attentive, not dazed. The court rejected the challenge without addressing the demeanor issue. After trial the defense renewed its Batson challenge pointing out the excused juror had two years of college and there was a non-black person who became a juror who was also unemployed and didn't fill out everything on the questionnaire. The defense argued the court had not made a Batson third-step discrimination finding. The district court ruled its "made sense" finding was implicitly the requisite finding. It did not make a finding on the demeanor or comparative-juror analysis except to say the latter didn't make a difference. Importantly for future reference, the 10th thought the defense should have laid out all its Batson case by the end of jury selection. At that point in time the defense had only challenged one of the 4 reasons the government gave for its excusal. Nonetheless the 10th went on to hold, in conflict with other circuits, as the 10th recognized, that 10th precedent does not require an explicit discrimination finding. The 10th was satisfied that the court engaged with the evidence presented by both sides, as it was required to do, even though it didn't explicitly do so, essentially because judges are presumed to know the law. That should take care of most defense complaints. In a footnote the 10th also says a trial court doesn't even necessarily have to give the defense a chance to support its Batson challenge, as long as the judge considers all the relevant matters.

Second, the 10th held that Agent Small's testimony that PCP wholesalers do not typically package PCP for buyers [thus indicating Mr. Vann, who was a buyer, must have packaged the PCP] was based on reliable data primarily because the agent was familiar with drug dealers in general and the district court vetted Small through a pretrial Daubert hearing and at trial, providing an opportunity for counsel to present their cases why Small should or should not testify. The 10th says the agent had "numerous PCP arrests as well." In fact, he testified he had 15 to 20 arrests over the course of 29 years and admitted the drug world changes often! The 10th treats an argument under the "Santa Muerte" case, Medina-Copete with little sympathy holding that excluding expert officer testimony in general, "is the exception, not the rule."

Third, the 10th essentially holds that it will never reverse a conviction due to prosecutors misstating facts in closing as long as there is an instruction that what attorneys say is not evidence. In this case the 10th has trouble even finding a misstatement. The prosecutors argued that if Mr. Vann only thought he had codeine he could have just taken a plane instead of a train. So he must have known he had PCP. Agent Small testified you could get a codeine bottle with a prescription label past TSA. He never testified you could get codeine bottles past the TSA without a label. And pretrial he testified he came across tons of people carrying codeine on the train. The 10th thought this was just arguing based on reasonable inferences from circumstantial evidence, not lying. "Given the abstract nature of mens rea, the 10th proclaims, this tactic is as uncontroversial as it is ubiquitous." The government's theory doesn't have to be "airtight." The 10th finds on its own that prescription medicines have a decent chance to get through airport security whether names are displayed on the bottles or not. Mr. Vann also challenged a prosecutor's claim in closing that ordinarily people found with a lot more serious drugs than they thought they had become upset and break down. On appeal the government admitted there was no evidence of that. The prosecutor compared the usual reaction of people to Mr. Vann's, which was only fake surprise, according to Agent Small. The 10th concluded that in context really the prosecutor was only describing Mr. Vann's reaction, not misstating evidence. That part about the other people was all in the imagination of the court reporter.

Fourth, Mr. Vann knowingly waived his right to counsel at sentencing because three months before the court allowed him to go pro se the court warned him about the dangers of going pro se at trial. When he was given those warnings Mr. Vann chose to keep his counsel. A contemporaneous thorough inquiry is sufficient but not necessary for a knowing counsel waiver. At the post-trial hearing the court listened to Mr. Vann's complaints about his trial lawyers and denied his request for new counsel and found that he was aware of the consequences of his pro se decision, the 10th says. Once again, the 10th notes it would have preferred a more comprehensive procedure. But the "ongoing dialogue with Mr. Vann" was good enough.

Community Caretaking Function Justified Pat-Down Search of Apparently Drunk Man

U.S. v. Gilmore, 2015 WL 221619 (1/16/15) (Col.) (Published) (slip opinion here) - The 10th holds an officer had probable cause to believe Mr. Gilmore was a danger to himself, justifying a pat-down search that lead to the discovery of a firearm, One morning, Mr. Gilmore was mumbling to himself, apparently disoriented and staggering around a western stock show in 8 degree weather. The officers said Mr. GIlmore did not appear to recognize their presence at first. When asked what he was doing there, Mr. Gilmore looked at the officers but didn't respond. Mr. Gilmore complied when asked to put down the items in his hand. He mumbled incoherently in response to a question and did not answer whether he had a weapon. The pat-down ensued.

This was okay, says the 10th. Their community caretaking function allows officers to seize an intoxicated person if they have probable cause to believe the person is a danger to himself or others. There was such probable cause here under the totality of the circumstances, the 10th finds. (1) The officers could believe Mr. Gilmore was intoxicated given his apparent disorientation, evidenced by staggering, gazing into space and inability tor respond to simple questions. This was so despite the absence of typical alcohol consumption indicators, such as the smell of alcohol. (2) The officers reasonably believed Mr. Gilmore's perception and reaction time were impaired. (3) There was evidence the neighborhood surrounding the stock show was dangerous [gang activity, car thefts, weapon possessions]. (4) Mr. GIlmore might wander into an area of high speed traffic. (5) If Mr. Gilmore became unconscious in a remote area in the evening he could suffer serious injury or death from the colder weather, even though he was dressed warm enough at the time of the encounter. The 10th stressed its holding was "narrow" and highly fact-dependent.

Conviction Reversed for New Trial Because of Faulty Jury Instructions

U.S. v. Wheeler, 2015 WL 191149 (1/15/15) (Col.) (Published)(slip opinion here) - The 10th follows its recent decision in U.S. v. Heineman, 767 F.3d 9870 (2014), that the threat statute requires a subjective intent to threaten, resulting in a reversal of the conviction. Nonetheless the 10th does find the evidence was sufficient to convict, making a retrial possible. Mr. Wheeler made Facebook posts which called on his religious followers to kill police officers, children, judges, DAs and public defenders (!). The jury instructions only required the jury to find a reasonable person would have perceived the posts as threats.

The failure to require a finding of subjective intent was error. It was not harmless, the 10th ruled, because: the jury could believe, as Mr. Wheeler told the police, that he had no Facebook friends [very sad] and there was no evidence Mr. Wheeler had any religious followers to follow his commands. Mr. Wheeler's vague sense that his statements were illegal and his statement that he was trying to "stick it to the man" did not constitute uncontroverted evidence that he intended his posts to be threatening. On the other hand, there was sufficient evidence that the posts constituted a "true threat" which the First Amendment is okay with prosecuting. The 10th rejects the approach of some circuits to make an independent review of constitutional facts to see if the statements were a "true threat." Rather the 10th applies the usual any-rational-juror standard. A statement is a true threat if a reasonable person under the circumstances would understand the statement as a declaration of an intent to inflict bodily injury. In conflict with the 9th and 4th Circuits, the 10th holds that exhortations to others to cause harm, as in this case, can constitute a true threat, especially when a reasonable person might believe the individuals ordered to take violent action are subject to the declarant's will. The line between threats and incitement to violence, which is protected by the First Amendment unless directed to produce and likely to produce imminent lawless action, is not so clear, especially in the world of cyberspace, the 10th says. The 10th doesn't want people to be able to hide behind the First Amendment by exhorting others. In this case Mr. Wheeler's statements could reasonably be considered true threats. He commanded specific deadly action against a number of people, which must be evaluated in light of recent massacres by active shooters. The question is not whether Mr. Wheeler actually had religious followers who would follow his commands, but whether a reasonable reader of the statements could have thought so. Evidence of this possibility, although not dispositive, is the fact that some people were frightened by the posts. So there will be a retrial with intent-to-threaten instructions.

Monday, February 02, 2015

Colo. Sexual Assault with 10-Year Age Difference Not a Crime of Violence

United States v. Wray, __ F.3d __, 2015 WL 328589 (10th Cir. January 27, 2015) (slip opinion here): The Court held that a Colorado statute for sexual assault with a 10-year age difference (Colo.Rev.Stat. §18-3-402(1)(e)) does not constitutes a crime of violence for purposes of U.S.S.G. §2K2.1(a)(2) and §4B1.2 because it is not a forcible sex offense and it does not fall within the residual clause.

Judge May Make Sentencing Findings Re: Drug Quantity So Long as Statutory Range Not Affected

U.S. v. Cassius, 2015 WL 327824 (1/27/15) (CO) (slip opinion here): The issue before the court was whether Alleyne v. United States, 133 S. Ct. 2151 (2013), allows a district court to enhance an accused’s Sentencing Guidelines range for a 21 U.S.C. § 841 conviction based on a judicial drug quantity finding greater than what the jury found at trial. The jury found that Cassius intended to distribute only 21 grams of crack but the district court decided afterwards that he was responsible for 450 grams. The panel held that, so long as the sentencing court does not use its own drug quantity finding to alter the defendant’s statutory sentencing range, such an enhancement is entirely consistent with Alleyne. (It didn’t help that Cassius had a prior drug trafficking conviction which raised the statutory maximum to 30 years.) Nothing in the record proved that the trial court altered Cassius’s statutory sentencing range in any way, rather the court used its larger drug quantity finding "solely as a sentencing factor to help determine [Cassius's] sentence within the prescribed statutory range." (Apparently, the jury's decision didn't help the court enough.) Two points to consider: first, the panel commented that Cassius did not challenge the method used by the sentencing court to find him responsible for 450 grams. Second, the panel noted its ruling contradicts Justice Scalia’s dissent from the denial of certiorari in United States v. Jones, 135 S.Ct. 8, 8-9 (2014). There, the justice wrote that even if a judge’s factual finding does not alter the proper statutory range, the finding is impermissible if the final sentence would be substantively unreasonable in absence of the finding.

Monday, January 12, 2015

Habeas Petitioner Loses Because of Procedural Default

Dixon v. Hartley, 2014 WL 7399056 (12/31/14) (Col.) (unpub'd) - A habeas petitioner is caught in the clutches of habeas procedural default law, as interpreted by the 10th. Mr. Dixon, proceeding pro se, raised ineffective assistance of counsel, habeas claims in the state trial court. The state trial court addressed the issues on the merits. On appeal, however, the appeals court found the issues procedurally defaulted due to a failure to develop the claims enough or belatedly raising them in the reply brief. The 10th held Mr. Dixon got all he was entitled to. Martinez v. Ryan, 132 S. Ct. 1309 (2012), which held that ineffective assistance of habeas counsel or the failure to provide habeas counsel could be cause for a procedural default, only meant the petitioner could demand that the trial court address the claims' merits. Here Mr. Dixon got that. The procedural bar only occurred on appeal. Mr Dixon's procedural default cannot be excused.

Tenth Affirms Sentence, Concluding Judge's Potentially Discriminatory Statements Were Comments on Government's Recommendations

U.S. v. Reed, 2014 WL 7375604 (12/30/14) (Colo.) (unpub'd) - The 10th avoids deciding what standard to apply to potentially discriminatory comments by a sentencing judge and affirms the sentence. In this case the government agreed to probation for a cooperating Ms. Reed for being a straw firearm buyer for her abusive felon boyfriend, down from a 46-57 month guideline range. At the sentencing hearing, the district court expressed dismay that the recommended sentence might not reflect the seriousness of aiding the "arming to the teeth" of a crafty bad guy. The court thought the government was recommending the largest departure it had ever seen the government recommend. The court then observed: "over the course of my 3 years doing criminal cases I see a very big difference between how female defendants are treated by the prosecution, the defense and the probation office, particularly Anglo female defendants, and that, just from that status they should somehow receive a more lenient sentence." The court imposed a 6-month prison term to be followed by six months home confinement. Ms. Reed argued the 10th should apply the 2d Circuit test in these types of circumstances that requires reversal and resentencing before a different judge for "even the appearance that the sentence reflects a defendant's race or nationality." U.S. v. Leung, 40 F.3d 577, 586-87 (2d Cir. 1994). The 10th refuses to decide whether to adopt that test. Instead it says it doesn't matter because Ms. Reed does not satisfy the appearance-of-justice standard in this case. The 10th finds that the court was actually showing a legitimate concern for equal treatment of all criminal defendants and a reasonable observer would not think otherwise. As support for its decision, the 10th relies on: Ms. Reed's failure to argue the sentence actually was based on her gender or race and the judge's proper reasons for the sentence the judge chose, including the seriousness of the offense and the danger of an unfair disparity with similarly-situated defendants. Simply mentioning perceived biases in the government's recommendations do not rise to the appearance of the intrusion of improper factors into the sentencing decision. In a footnote the 10th assures us that "in the unlikely event any district court did sentence using irrelevant factors of race, sex, national origin, religion or socio-economic status" in violation of USSG § 5H1.10, the 10th would reverse the sentence.

Wednesday, December 31, 2014

District Court Lacks Equitable Authority to Expunge "Valid" Convictions

Tokoph v. U.S., 2014 WL 7273030 (12/23/14) (N.M.) (Published) - The 10th holds that a federal court does not have inherent equitable authority to grant expungement of a valid conviction. The 10th follows U.S. v. Pinto, 1 F.3d 1069 (10th Cir. 1993), which indicated a federal court may grant expungement of an invalid conviction that for example was "unconstitutional, illegal or obtained through government misconduct. Mr. Tokoph's was a valid conviction for fraud in 1972 and so not eligible for equitable expunction. The 10th held the Federal Youth Corrections Act (FYCA), which was repealed in 1984, did not authorize expungement either. It provided for an automatic "set aside" of a conviction when the offender had successfully completed probation. The 10th feels obligated to follow U.S. v. Wacker, 72 F.3d 1453 (10th Cir. 1995), in which it held an FYCA set-aside was not the equivalent of an expungement under the Guidelines for criminal history purposes. Congress's use of the term "set aside" rather than "expunge" indicates Congress did not authorize expungement, the 10th reasons. In the course of reaching its conclusion, the 10th discusses when it must follow Supreme Court dicta. Mr. Tokoph cited statements in two S. Ct. cases that indicated the FYCA provided for expunction. The 10th has often said it is bound by Supreme Court dicta almost as firmly as the Court's outright holdings. But the indications in the S. Ct. cases in this case were not the sort of considered dicta the 10th finds compelling. At least the dicta was not powerful enough to overcome what the 10th considered direct controlling 10th precedent.

Mail Fraud Convictions, Sentences, for Pretending to be a Lawyer Upheld

U.S. v. Kieffer, 2014 WL 7238565 (12/22/14) (Col.) (unpub'd) - The 10th finds FRCP 36, which allows correction of a clerical error in a judgment, is not the proper vehicle to do what the district court did, but in the end the district court's intent is fulfilled. The district court wanted Mr. Kieffer to spend 48 months extra for committing the same fraud in Colorado that he did in North Dakota, i.e., pretending to be a real lawyer. He got 51 months in North Dakota. The 10th reversed the judge's first attempt because the guideline called for a concurrent sentence. This time he announced at sentencing that Mr. Kieffer would get a 99 months concurrent sentence. He added that the 99 months would be adjusted by the 51 months served in North Dakota. The judgment mentioned the 99 months and added the remaining sentence should be 48 months after subtracting the 51 months already served. The BOP interpreted the order such that Mr. Kieffer would only serve an extra 8 months. When the probation officer got wind of this, the officer dutifully tried to help the court correct this situation. The court eventually issued three more judgments, including a couple after learning the second judgment would result in Mr. Kieffer not getting credit for 11 months of incarceration. The court tried to use Rule 36 as the authority for all the changes. The 10th admonished that the court had done more than correct a transcription error, which is essentially the only kind of error Rule 36 can correct---the kind of error a "clerk or amanuensis" might make. Rule 36 can't be used to correct a judicial error. That sort of correction requires a formal hearing with the defendant being present in person. Here Mr. Kieffer was only present by video when the court made one of the changes, Video doesn't satisfy the presence requirement. The court could only adhere to its original orally announced sentence. So the 10th ordered that the court issue a judgment that reflected that, which would be 99 months with full credit for 11 months Mr. Kieffer served between the start of his North Dakota incarceration and the start of the Colorado case, resulting in an 88-month concurrent sentence.

The 10th found no double jeopardy problems. Mail or wire fraud is committed with each use of the mails or "wires." So Mr, Kieffer was punished for different acts in the two states. It doesn't matter that his actions in Colorado were considered in the North Dakota sentencing It's not the same as prosecution for the same conduct. The upward variance was just fine, given the judge's justification that Mr. Kieffer engaged in a pattern of misleading vulnerable victims.

The 10th holds that Apprendi and Alleyne do not forbid judicial fact-finding to determine the restitution amount. 10th precedent says restitution is a civil remedy, not penal. But the 10th panel does say "Mr. Kieffer offers compelling reasons why we might consider restitution under the Mandatory Victims Restoration Act to be penal." But precedent rules. Mr. Kieffer does prevail on his non-constitutional restitution argument. The district court ordered restitution of more than $120,000 based on losses to people other than the victim noted in the indictment and conduct before the beginning date of the scheme alleged in the indictment. The 10th rejected the government's notion that the prior fraud furthered the later scheme against the victim named in the indictment. That conduct did not reasonably occur in the course of the scheme the indictment alleged. Plus there was insufficient proof of the amounts of the ordered restitution. The claims asserted in FBI interviews were not enough absent financial records, credit card statements, canceled checks or other proof of payment to Mr. Kieffer. The government did not prove the actual losses by a preponderance. The restitution order was therefore invalid.

!0th Affirms Denial of Motion to Suppress; Allows Admission of Uncharged Conduct as "Intrinsic" Evidence; OK Offense of Pointing a Firearm At Another Was ACCA Predicate

U.S. v. Hood, 2014 WL 7172398 (12/17/14) (Okl.) (Published) - Affirmance of a suppression denial, bad-act admission and ACCA application. In procedurally helping the government perhaps, under the goose-gander principle, this decision might help the defense some day. The 10th holds that, by arguing below that the seizure and detention of Mr. Hood was a justifiable Terry stop, the government was also implicitly arguing that the officers' use of handcuffs and weapons was justified, even though it never said so. So the government didn't waive the latter argument. The 10th holds the officers were fully justified in drawing their firearms and ordering Mr. Hood to the ground to protect their own safety and maintain the status quo where: neighbors told officers a man was running from an apartment in a "high-crime" area; officers had minutes before knocked on the door of that apartment they had connected to a burglary suspect; they had identified themselves but no one answered the door; when they later encountered Mr. Hood leaving the apartment, he had his back to them wearing a winter jacket on an "unseasonably warm" day; and he frantically fumbled in his pockets, causing the officers to believe he might be trying to remove a weapon. After Mr. Hood went to the ground, he appeared to lie on top of something with his hands underneath him. When asked if there was a firearm underneath him, Mr. Hood unhelpfully responded: "I don't know." At that point it was okay to handcuff and frisk Mr. Hood to determine if he was armed.
As the 10th says, it has repeatedly upheld the use of evidence of wrongful, uncharged acts to contextualize the defendant's arrest as intrinsic evidence outside the scope of 404(b). This case was no exception. It was okay to admit evidence of the burglary investigation. It helped explain why the officers were at the apartment complex and why they would be on heightened alert. The 10th doesn't explain why those matters were relevant. Plus, the 10th finds, the evidence wasn't unfairly prejudicial in violation of 403 because the government supposedly never suggested Mr. Hood was a suspect in the burglary.
The 10th rules that. Mr. Hood's 1985 conviction for pointing a firearm at another in violation of Oklahoma law was an ACCA violent felony because it has as an element threatening the use of physical force. Using the modified categorical approach, the 10th finds Mr. Hood's guilty plea to threatening or intimidating someone with the felonious intent to injure constituted an admission of the requisite threat, whether or not, as the criminal information alleged, his intent was to injure physically or by mental or emotional intimidation.

Unpublished decisions

U.S. v. Pinson, 2014 WL 7019664 (12/15/14) (Okl.) (unpub'd) - The 10th interprets Fed. R. Crim. Pro. 36, which allows a court to correct a clerical error in a judgment at any time, in a defendant's favor. Mr. Pinson asserted in his Rule 36 motion that the district court expressed a recommendation that he be incarcerated at the Federal Medical Center (FMC) in Butner to address his mental health issues. But the judgment said "FCI Butner." Mr. Pinson contended this resulted in his placement in a facility that didn't address his psychiatric needs. The 10th holds that, if the transcript indeed reflects the judge's FMC recommendation, Rule 36 provides the remedy to correct the judgment appropriately. Even though BOP doesn't have to follow the recommendation, it will then have the judge's considered judgment, which the BOP must consider under 18 U.S.C. § 3621(b)(4)(B).

U.S. v. Bong, 2014 WL 7210999 (12/18/14) (Kan.) (unpub'd) - If you thought, as I did, that Mr. Bong was convicted of a dope offense, you would be wrong. It's a firearm case. The 10th holds that an officer's knowledge that a suspect is presently armed is sufficient standing alone to justify a protective frisk to search for other weapons. In this case Mr. Bong's possession of a folded-up pocket knife clipped to the outside of his pant's pocket justified the frisk. And for added measure, Mr. Bong's prior arrest for weapons and drug charges, the fact that he had driven away from a house under observation for drug trafficking and his "evasive body positioning" - keeping the right side of his body away from the officer, also created a reasonable suspicion Mr. Bong was armed and dangerous. The officers' subsequent use of force was reasonable where: Mr Bong backed up from the car on which an officer had ordered him to put his hands; the officer tried to maintain control of Mr. Bong's hands; they struggled; the officer gave Mr. Bong a hip toss to the ground; when it appeared Mr. Bong was about to stand, the officer kicked Mr. Bong several times in the stomach, dislodging what the officer believed to be a gun; and another officer entered the fray to restrain Mr. Bong. With respect to the admission of evidence at trial, the 10th refuses to consider Mr. Bong's plain error argument because he did not adequately argue the third and fourth prongs of the plain-error-reversal standard. He just asserted the evidence was "prejudicial." That didn't cut it.

U.S. v. Storey, 2014 WL 7172363 (12/17/14) (Okl.) (unpub'd) - The 10th finds the Fourth Amendment did not apply to FedEx employees' search of a package, even though some of the search occurred in front of the police. The officers didn't instigate, encourage or aid the search. The FedEx employees did not become government agents despite their intent to help the police and the fact that one enthusiastic employee had summoned the police about suspicious packages as many as a hundred times. Private folks are free to choose to help the government without becoming agents. There was insufficient evidence that an impending California indictment of FedEx for trafficking misbranded prescription drugs for internet pharmacies placed so much pressure on the company to cooperate that it was effectively coerced to assist the government. On the sentencing front, the 10th indicates it might be possible for a district court not to hold a defendant responsible under the guidelines for all the drugs received in a package. But here it was okay for the court to do so. Some packing warning arises from this case. The enthusiastic FedEx employee found the searched package suspicious in part because it had "an awful lot of tape" on it. Apparently drug dealers are notoriously inefficient packagers.

U.S. v. Mendoza-Haro, 2014 WL 7181235 (12/18/14) (Col.) (unpub'd) - A cautionary tale for § 5K1.1 defendants who testify. The 10th says it was okay for the district court to consider Ms. Mendoza-Haro's testimony at trial that she helped move a hundred pounds of meth over the course of 4 years. She did not testify under a grant of immunity and her § 5K1.1 plea agreement did not imply the court couldn't use her testimony in sentencing her. And the court can consider such aggravating § 3553(a) factors to limit the extent of a § 5K1.1 departure. The guidelines only preclude using § 3553(a) factors to further decrease a sentence beyond what a defendant's substantial assistance has earned--which becomes essentially the new mandatory minimum. It was okay for the Sentencing Commission to circumscribe the court's discretion in only one direction. The 10th noted it was error for the district court to refuse to consider the safety risk of Ms. Mendoza-Haro testifying. But no relief because that wasn't raised as an issue.

U.S. v. Morain, 2014 WL 7181542 (12/18/14) (Kan.) (unpub'd) - The 10th is untroubled by a 151-month sentence for a child pornography defendant. It is unmoved by the argument that the child porn guidelines are not empirical and overly harsh due to the imposition of enhancements for typical conduct. A sentence near the middle of the statutory 5-20-year range for a typical child porn defendant did not strike the 10th as unfair. Nor did the 10th think it was problematic that almost two-thirds of child porn sentences are below the guideline range. This meant one-third of such sentences were within the guideline range. So this low-end sentence was not so severe as to be substantively unreasonable.

U.S. v. Tenderholt, 2014 WL 7146025 (12/16/14) (Wyo.) (unpub'd) - Descamps does not restart the statute-of-limitations clock for filing a § 2255, the 10th declares. Descamp did not make new law that would trigger a new limitations period. Rather it only corrected the 9th Circuit's misunderstanding of the Supreme Court's prior opinions.

Hughes v. Oliver, 2014 WL 7019002 (12/15/14) (Col.) (unpub'd) - It was not a violation of due process for the state to reincarcerate Mr. Hughes after mistakenly releasing him about 18 years too early and leaving him at liberty for over a year. Generally there's no constitutional problem if the prisoner is recommitted before his sentence would have expired if the prisoner had remained in prison. What happened was not conscience-shocking. The 10th ruled that such matters are "simply part of life"; "mistaken releases resulting in reincarceration occur too frequently to raise any presumption of arbitrariness." And there was no affirmative government misconduct to constitute estoppel, despite erroneous advice given at Mr Hughes' unit-team meeting that his upcoming release was lawful. The 10th suggests that under common law Mr. Hughes might be entitled to credit against his prison term for the time he was unconfined. But Mr. Hughes didn't raise that point.

Rackley v. Blevins, 2014 WL 7210783 (12/19/14) (Okl.) (unpub'd) - One of those cases where the 10th is "sympathetic," but can't find a way to help out. Mr. Rackley was denied visitation by his wife based on what the 10th describes as procedures "reminiscent of a Kafkaesque Catch-22." Mr. Rackley was denied visitation at one facility. After he was transferred, he was told the only person who could restore visitation was the warden of his former facility. That warden declined to restore visitation because Mr. Rackley was no longer at his facility. Unfortunately, the 10th says inmates have no liberty interest in visitation and so cannot get visitation through § 1983.

Tuesday, December 30, 2014

Petitioner Failed to Show Prejudice from Counsel's Failure to Move to Suppress Evidence

U.S. v. Cruz, 2014 WL 7242833 (12/22/14) (NM)(published) - Court affirms denial of 28 USC § 2255 claim of ineffective assistance of counsel based on attorney's failure to move to suppress methamphetamine evidence and subsequent statements obtained as a result of a search of Mr. Cruz's residence where the executed warrant was neither signed nor dated by the issuing state judge. There was no evidence that the judge was misled or wholly abandoned his judicial role, that the affidavit lacked indicia of probable cause, or that the warrant failed to particularize the place to be searched or the things to be seized. It was objectively reasonable for the executing officers to believe the warrant was valid. So there was no reasonable probability under Strickland's second prong that the result of Mr. Cruz's criminal proceeding would have been different if counsel had filed a motion to suppress.

Vindictive Prosecution Claim Rejected; Remand for Resentencing In Accord with Agreement Ordered

U.S. v. Catrell, 2014 WL 7242835 (12/22/14) (Kan.)(published) - Mr. Catrell was free to accept or reject Rule 11(c)(1)(C) agreement to 132-month sentence after addition of new charges subsequent to withdrawal of prior guilty plea, so the Court rejects his claim of vindictive prosecution. Despite parties' agreement to 132-month sentence based on 24 months for aggravated identity theft, to run consecutively with 108-month sentence for fraud and money laundering, the district court imposed 132 months total, but ordered 54 months on identity theft and 78 months on the other charges. The imposed sentence was illegal because the statutory maximum on identity theft is 2 years. The district court is ordered to resentence Mr. Catrell on all counts in accordance with the plea agreement.

Search Warrant Based on Informant's Tip OK'd

U.S. v. Long, 2014 WL 7240718 (12/22/14) (Okla.)(published) - Search warrant affidavit provided probable cause based on confidential informant's report of recent observation of cocaine packaged for distribution at the apartment to be searched. It's fine that the defendant was described only as a "Black male" because the contraband was observed at the place to be searched; it was unnecessary for the affidavit to link the defendant to that place. It was also unnecessary for the government to identify the informant or to show independent police investigation about the alleged wrongdoing given the adequacy of the information provided showing the informant's prior accuracy and credibility. The district court properly denied a Franks hearing because Mr. Long failed to make an adequate evidentiary showing that the officer recklessly or intentionally supplied false info in the affidavit. And anyhow, the magistrate judge interviewed the informant ex parte and determined that testimony from the informant would not help the defense. The informant was only a tipster, not a participant in or witness to the charged crime. Admission of a compact disc found near the cocaine that was entitled "Cokeland" with defendant's picture on the cover was sufficiently probative to warrant its admission into evidence despite possibility of unfair prejudice.

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.