Wednesday, August 29, 2018

U.S. v. Mann, 17-2117, 14cr3092 JP, 2018 WL 3798284 (Aug. 10, 2018) (NM, published): Mr. Mann was charged with violating 18 U.S.C. § 924(c)(1)(A)(iii) by discharging a firearm during and in relation to Assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6). Mr. Mann moved to dismiss the indictment, arguing that § 113(a)(6), is not a crime of violence within the meaning of § 924(c)(3)(A). The district court granted the motion to dismiss, reasoning that § 113(a)(6) is not a crime of violence because it is possible to violate the statute with a mens rea of recklessness. The Tenth Circuit reversed extended the reasoning of Voisine v. United States, 136 S.Ct. 2272 (2016) holding that reckless conduct qualifies as the volitional use of physical force against the person or property of another for purposes of § 924(c)(3)(A). The panel concluded that 18 USC § 113(a)(6) is categorically a crime of violence under 18 U.S.C. § 924(c)(3)(A).
United States v. Marquez, 2018 WL 3744063 (10th Cir. August 7, 2018) (NM): The panel finds that; (1) the evidence was sufficient for a rational jury to find Marquez guilty of using a phone to facilitate a drug felony, participating in a conspiracy to distribute over 500 grams of methamphetamine, and possessing methamphetamine with the intent to distribute it; (2) the district court did not err when it asked a witness one question to clarify a factual matter; and (3) the district court did not abuse its discretion or plainly err when it admitted testimony from government witnesses.

There are two points to consider in this otherwise modest opinion. First, the court finds that although Marquez was never seen with methamphetamine and none was recovered from his possession, the jury still could convict him of possession with intent to distribute. This is so because in recorded calls he was heard saying he still had “a prior batch of low-quality methamphetamine and a new batch of high-quality methamphetamine.” The panel wasn’t troubled by the fact that he “didn’t specifically use the words ‘drugs’ or methamphetamine.’” It said Marquez’s statements were ‘direct evidence’, not circumstantial evidence of possession. Therefore, it was not necessary to link him to “an observed substance that a jury can infer to be a narcotic.”

Second, the panel said a police officer may testify, as a lay witness, about the accused’s role in the conspiracy and ‘code words’ and phrases based on what she heard while listening to recordings of various telephone calls. Regarding the accused’s role, the officer’s testimony was “based on her personal observations.” Apparently, personal observations include listening to recordings. The officer’s testimony about the meaning of code words used in those calls was not expert testimony masquerading as lay testimony because it “was based on what she learned during this investigation.” It is unclear whether the defense made this particular objection but it might be helpful to do so if you are confronted with similar circumstances.
United States v. Williams, 2018 WL 3733816 (10th Cir. August 7, 2018) (OK): The panel affirmed the district court’s conclusion that the government may garnish Williams’ bank account for the total amount of restitution because the judgment said it was “due immediately.” Williams argued that according to the schedule of payments, if restitution is not paid immediately, then he had to make payments of 10% of his quarterly earnings. Since he did not pay immediately, the payment schedule went into effect and the government’s application to garnish his bank account was inappropriate. The panel disagreed. The payment schedule was just a way to gather unpaid amounts. Garnishment was appropriate because the judgment said the amount owed was due in full on the date of the judgment. However, before ordering the funds released to the government, the panel instructed the district court to address the bank’s objection to the release of all funds because it had frozen an amount to cover a fraud matter.

United States v. Bacon, 2018 W: 2978137 (10th Cir. August 21, 2018) (UT): In federal court, Bacon pleaded guilty to bank robbery and was sentenced. Afterwards, he filed Fed.R.Crim.P. 41(g) motion to get back property that state officials seized when he was first arrested. This rule provides an “equitable remedy” and the person must show “irreparable harm and an inadequate remedy at law” to succeed. Here, because Bacon had adequate remedies under state law to get his property back (or to seek compensation) and since there was no proof the state ever turned his property over to federal authorities, the district court correctly denied Bacon’s motion.

Monday, August 27, 2018

Sandberg v. Englewood, Colorado, 2018 WL 1180971 (3/7/18) (Col.) (unpub'd) - In a § 1983 civil rights case, the 10th finds a Fourth Amendment violation, but denies relief. A concerned person saw Mr. Sandberg walking down the street with a pistol in a holster on his hip. For some reason, that person calls 911 and alleges Mr. Sandberg might be involved in "some form of workplace violence." Officers find Mr. Sandberg at an auto repair shop. The officers draw their weapons,confront Mr. Sandberg, search him and take his pistol, holster and bullets. The officers learn the shop's owner had given Mr. Sandberg permission to wear his pistol in the shop as long as he didn't remove the gun from its holster. Eventually the officers contact the 911 caller and learn there was no basis to believe Mr. Sandberg was involved in workplace violence or anything else illegal. Nonetheless, the officers continued to detain Mr. Sandberg while trying to figure out what to charge him with. They detained him for about 4 hours. The officers gave him a summons for disorderly conduct. That charge was eventually dismissed. The officers kept Mr. Sandberg's property for five months. The 10th thinks the initial detention was okay. The "workplace violence" allegation was enough. But, after the officers talked to the 911 caller, there was no reasonable suspicion to detain Mr. Sandberg. Even a brief extension after talking to the 911 caller violated the Fourth Amendment. But the 10th lets the officers off the hook by virtue of qualified immunity. It wasn't clearly established, the 10th rules, that the officers were wrong because of the lack of case law with facts like those in this case.

U.S. v. Sarracino, 724 F. App'x 673 (3/9/18) (N.M.) (unpub'd) - The 10th holds federal second-degree murder and New Mexico manslaughter are crimes of violence under USSG § 4B1.1. Reckless crimes and crimes that could involve indirect force satisfy the elements clause.

U.S. v. McFarland, 726 F. App'x 709 (3/9/18) (okl.) (unpub'd) - On mootness grounds, the 10th dismisses Mr. McFarland's attempt to challenge the magistrate judge's refusal to require the government to present witness for cross-examination at the preliminary, supervised-release-revocation hearing. Mr. McFarland was able to cross witnesses regarding his violation of various state laws at the final revocation hearing. To avoid getting mooted out he had to show he would be subjected to the same alleged constitutional violation. But he could not show he would again face a supervised release revocation proceeding.
United States v. Francis, 2018 WL 2646755 (June 5, 2018) (CO): The panel finds the district court improperly applied USSG’s § 2K2.1(b)(5) firearms trafficking enhancement. Application note 13 explains that a court may impose a 4 level increase when the accused knew or had reason to believe the person receiving the firearms had a prior felony conviction for a crime of violence or controlled substance offense. Here, Francis was the straw purchaser for an ATF informant with a felony. The informant told Francis he had a “bullshit felony” conviction and that he had a “stereotypical background.” The panel said these statements “suggested the CI did not have a felony conviction for a crime of violence.” Thus, the government did not prove that the enhancement should apply. However, the panel found at trial the government established beyond a reasonable doubt that the CI was an actual felon.
The panel also held that the district court plainly erred in ordering sex-offender treatment as a special condition of supervised release. Contrary to circuit precedent, the district court did not provide a “generalized statement that would justify” that treatment. Regardless, Francis was unable to show this error affected his substantial rights. The record demonstrated the court had a reason to order treatment. Francis had recently been convicted of a sex offense and failed to complete the court-ordered sex offender treatment program.

United States v. Tapaha, 2018 WL 2647028 (June 5, 2018) (NM): Tapaha was convicted of assaulting her boyfriend with a truck. On appeal she argued that the district court violated her constitutional rights to confrontation and to present a defense. Three witnesses would have detailed the history of abuse Tapaha suffered at the hands of her boyfriend. This history also would have been described during cross-examination of the boyfriend. This evidence, Tapaha she said, was essential to her claim that her fear of harm was reasonable and that she acted in self-defense.
The panel rejected Tapaha’s arguments. But its conclusions may be beneficial to you in future cases. First, the panel found the district court properly excluded some of the boyfriend’s testimony because it was speculative. He admitted he was too drunk to remember being hit or to know how much of a threat he was to Tapaha. Citing Fed.R.Evid. 602 and 701, the panel said that when a witness “lacks any recollection of the incident”, testimony about the incident or the accused’s state of mind is irrelevant. This is so because that testimony is not based on personal knowledge. In a case where the complaining witness was too intoxicated to remember anything, this ruling can help you restrict the testimony.
Second, the panel said the testimony of the three witnesses would have been cumulative to other evidence Tapaha presented. Tapaha offered it as reverse Fed.R.Evid. 404(b) evidence and as proof of a specific character trait allowed by Rule 405. The panel found the testimony “would not have added anything significant to the testimony already admitted.” Additionally, this evidence would not have bolstered Tapaha’s “weak” self-defense claim. When the government tries to present numerous incidents of misconduct using Fed.R.Evid. 404(b) or 405, the panel’s ruling here may help you limit that evidence.
U.S. v. Melgar-Cabrera, 892 F.3d 1053 (6/8/18) (N.M.) (Published) – Mr. Melgar-Cabrera was sentenced to life imprisonment pursuant to 18 U.S.C. § 924(j) for causing the death of a person while using a gun to commit an 18 USC § 924(c) crime of violence. He appealed, contending that Hobbs Act robbery, the underlying crime for which he was charged, is not categorically a crime of violence under 18 U.S.C. § 924(c)(3)(A).
Before addressing the merits, the Tenth Circuit held that 18 U.S.C. § 924(j) was separate crime, and not sentencing enhancement, overruling United States v. Battle, 289 F.3d 661 (2002).
On the merits of the appeal, Mr. Melgar-Cabrera contended that Hobbs Act robbery does not categorically constitute a crime of violence under § 924(c)(3)(A). Mr. Melgar-Cabrera argued that (1) the term “force” as used in the definition of robbery in 18 U.S.C. § 1951(b)(1) does not require violent force, whereas “physical force” as used in § 924(c)(3)(A) does; and (2) unlawfully taking a victim’s property against his or her will “by means of . . . fear of injury” does not require the attempted or threatened use of physical force.
As to the first argument, the 10th concluded that the word “force” as used in § 924(c)(3)(A) means “violent force,” as the Court held in Johnson v. United States, 559 U.S. 133 (2010) as to § 924(e)(2)(B)(i). The 10th applied the categorical approach and held that Hobbs Act robbery “can only be satisfied by violent force.” Thus, the 10th held that physical force as used in § 924(c)(3)(A) “means violent force—that is, force capable of causing physical pain or injury to another person.” As to the second argument, Mr. Melgar-Cabrera contended that placing a victim in fear of injury by threatening the indirect application of physical force is not sufficient to constitute the requisite threatened use of physical force because it focuses on the result of a defendant’s conduct, i.e., bodily injury, and not the means of inflicting it and relied on United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005). The 10th recognized in United States v. Ontiveros, 875 F.3d 533, 536 (10th Cir. 2017) that the Supreme Court abrogated Perez-Vargas “[to] the extent that [it] holds that indirect force is not an application of ‘physical force.’ ” Ontiveros, at 538 (quoting United States v. Castleman, 134 S.Ct. 1405, 1415 (2014)). “To the extent Mr. Melgar-Cabrera contends that committing Hobbs Act robbery by putting someone in fear of injury does not necessarily constitute the threatened use of physical force because it can be done through indirect force, Ontiveros has foreclosed his argument.” As a result, the 10th affirmed Mr. Melgar-Cabrera’s conviction and life sentence.
U.S. v. Lynch, 881 F.3d 812 (2/5/18) (Col.) (Published) - The 10th affirms a conviction for assault or intimidation of a flight attendant that interferes with his or her duties in violation of 49 U.S.C. § 46504. The 10th holds that only general intent, not specific intent, is required to violate the statute, that is, the defendant just has to know the facts that make the defendant's conduct illegal. The 10th finds general intent best achieves the statute's purpose of protecting air-travel safety. The 10th doesn't find relevant the Supreme Court's more specific mens rea requirement imposed in Elonis v. U.S., 135 S. Ct. 2001 (2015), regarding the threat statute, 18 U.S.C. § 875(c). All Elonis means, the 10th says, is that "we read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct." Requiring the § 46504 conduct to be voluntary and deliberate fits the bill. A defendant who is intimidating enough to prevent an attendant from fully performing his or her duties to the point of undermining everyone's safety shouldn't be able to avoid culpability because the defendant didn't intend to intimidate the attendant, the 10th says.
The 10th beats back an overbreadth challenge. Mr. Lynch asserted his demanding more alcohol, calling the flight attendants foul names and threatening to take down the airline with negative publicity, while offensive, were just exercises in free speech. The 10th finds the statute sets out a content-neutral prohibition on conduct [not profane language] in a specific time, place and manner while serving a significant governmental interest. The 10th points out Mr. Lynch's behavior was less benign than he described because he screamed in attendants' faces, shouted vile insults at them and refused to calm down, not to mention sexually harassing by inappropriate touching.
The 10th also rejects an unconstitutional vagueness challenge. Mr. Lynch contended there was no clear line between impolite conduct and criminal conduct because the line depended on how a particular attendant feels. He claimed the only interference he caused was "someone in row 16 had to wait five minutes before getting a soda refill." On the bright side, the 10th acknowledges that Johnson II means you can succeed on a vagueness claim without showing every application of the statute is vague. But here, the 10th says, ordinary people can tell what type of conduct is prohibited, where it is prohibited and what result the statute is intended to prevent.
The 10th affirms the district court's refusal to give an acceptance of responsibility reduction. Mr. Lynch contested several factual contentions at trial [e.g. his touchings were only to get the attendant's attention and as a conciliatory gesture]. And his profanity, screaming and aggressive conduct during his arrest wasn't the behavior of someone accepting responsibility, the 10th adds.

U.S. v. Goosen, 723 F. App'x 608 (1/31/18) (N.M.) (unpub'd) - The 10th affirms a 15-offense-level upward variance for a heroin distribution offense from 12 to 18 months to 90 months. The judge varied based on finding that 13 months before the instant offense Mr. Goosen injected a friend with heroin that caused his friend's death. The 10th rejects Mr. Goosen's Fifth and Sixth Amendment challenges because, according to 10th precedent, a district court may consider an uncharged-conduct finding in imposing sentence when the finding doesn't result in a mandatory minimum or a sentence beyond the stat max. The 10th distinguishes this case from U.S. v. Allen, 488 F.3d 1244 (10th Cir. 2007), where the 10th found substantially unreasonable an upward variance based on the defendant's uncharged conduct. In that case, the 10th says, the uncharged conduct was unrelated to the instant offense and the district court imposed a sentence based on the guideline range for the uncharged conduct. Here, the 10th explains, the uncharged conduct was related to the offense of conviction and the district court varied because the conduct affected the adequacy of the advisory guideline range, not to punish for the conduct. The variance was because Mr. Goosen's continued heroin distribution after the death demonstrated he would not be adequately deterred, and the public not adequately protected, by a mine-run guideline sentence. The 10th notes its precedent has rejected Justice Scalia's dissenting opinion in Jones v. U.S., 135 S. Ct. 8 (2014), that "any fact necessary to prevent a sentence from being substantively unreasonable must be admitted by the defendant or found by a jury."
Grant v. Royal, 886 F.3d 874 (3/30/18) (Okl.) (Published) - The 10th affirms an Oklahoma death sentence with Judge Moritz dissenting. The majority opinion is 165 pages long. (1) The 10th holds Mr. Grant only exhausted his substantive, not his procedural, incompetence issue in state court, rendering the procedural issue defaulted. The state's addressing the procedural issue in its appellate brief didn't meet Mr. Grant's burden to prove fair presentation of the issue. Substantive incompetence addresses whether a defendant was incompetent. Procedural incompetence addresses whether the court should have had a bona fide doubt about the defendant's competence, which would trigger a requirement to inquire about the matter. Mr. Grant didn't raise the substantive incompetence issue in his § 2254 petition. So he's out of luck on the incompetence issue.
(2) The 10th rejects Mr. Grant's ineffective assistance claims.
(3) The 10th finds the OCCA reasonably handled a common Oklahoma mitigating-circumstance instruction/prosecutorial misconduct issue.
(4) The 10th rejects Mr. Grant's claim that the OCCA unconstitutionally devalued the use of comparative juror analysis in assessing a Batson claim.
(5) It was reasonable, the 10th rules, for the OCCA to find no error in the trial court exclusion of certain reports that concerned topics addressed by live witnesses. The OCCA could have reasonably concluded the Constitution doesn't require that "every scrap or scintilla of mitigating evidence" be admitted.
(6) The 10th holds there are no grounds for relief for cumulative error. But the 10th does affirm that cumulative-error analysis reflects clearly established S. Ct. law. And the 10th affords de novo review because the OCCA didn't address the merits of Mr. Grant's cumulative-error claim. Still, the assumed ineffective assistance of counsel deficiencies don't add up "synergistically" to enough prejudice to justify relief.
Judge Moritz dissents on the prosecutorial misconduct issue. She votes to overturn the death sentence. She believes the OCCA misunderstood Mr. Grant's argument and so de novo review, rather than application of the stringent AEDPA standard of review, applies to the issue. She disagrees that Mr. Grant forfeited the de novo argument, noting AEDPA not only seeks to protect federalism and comity, it also "seeks to ensure that defendants aren't convicted or sentenced in violation of federal law."

U.S. v. Cash, 727 F. App'x 542 (3/29/18) (Okl.) (unpub'd) - The 10th refuses to apply Mathis and Johnson II to a § 2255 sentence correction. Mr. Cash complained that, due to some confusion about the various counts of conviction, the district court by mistake sentenced him as though he were subject to the ACCA. The government agreed the ACCA didn't apply. As a result, the district court rearranged the sentences so that Mr. Cash's ultimate sentence was reduced from 35 years to 30 years. The court didn't hold a hearing. Mr. Cash contended he was entitled to a resentencing in which the latest case law would apply. The 10th says that, if a defendant discovers a sentencing error and the Rule 35 period has already elapsed, the defendant may file a § 2255 motion to address "obvious sentencing errors." The 10th doesn't explain how the defendant can avoid procedurally defaulting any claim---a defense apparently the government didn't raise here. The 10th declares what Mr. Cash got was a sentence correction of a technical mistake, not a resentencing. So, the 10th holds, he isn't entitled to application of the good new case law.

U.S. v. Tinoco, 2018 WL 1517129 (3/28/18) (N.M.) (unpub'd) - In a case perhaps relevant to clients who have a medical marijuana permit, the 10th affirms a supervised release condition prohibiting Mr. Tinoco from using marijuana, despite his presumably sincere religious belief that required marijuana ingestion. The government has a compelling interest in the prohibition, the 10th rules, because: Congress requires the condition for all defendants that they refrain from using controlled substances to prevent drug abuse among convicts; and Congress has found marijuana has a detrimental effect on the health and general welfare of the American people.

Crosby v. Fox, 715 F. App'x 870 (3/22/18) (Col.) (unpub'd) - The 10th rejects a prisoner's § 2241 claim that his calling a guard a "white ass country cracker" was entitled to First Amendment protection. Backtalk to a guard isn't constitutionally protected, the 10th opines. The prison hearing officer who revoked Mr. Crosby's good time for the incident considered Mr. Crosby's benign definition of "cracker," but was unpersuaded by it, the 10th decides.
U.S. v. Ellis, 868 F.3d 1155 (8/24/17) (Kan.) - A nice Alleyne ruling overturning a life sentence in a drug conspiracy case. The government attempted to § 851 Mr. Ellis to a life term based on his 2 prior drug convictions and a 21 USC § 841(b)(1)(A) crack cocaine amount of 280 grams and/ or a cocaine powder amount of 5 kilograms. The jury found Mr. Ellis guilty of being involved in a conspiracy involving those amounts. However, to impose the mandatory minimum Alleyne required the jury to find one or the other of the amounts was within the scope of Mr. Ellis's agreement and reasonably foreseeable to him. The jury instructions did not require the jury to make that finding. In reaching its holding, the 10th acknowledges Allleyne overruled a really bad 10th Circuit case, U.S. v. Stiger, 413 F.3d 1185 (2005), which held the defendant could be held responsible for everything the drug conspiracy was responsible for. The government failed to prove the error harmless beyond a reasonable doubt. Regarding the powder cocaine, the government relied at trial on the Mexican drug cartel with nothing much particular to Mr. Ellis. For the crack, there was evidence Mr. Ellis was personally involved with 25.3 grams, but the government didn't present overwhelming evidence with respect to the additional 254.7 grams it needed. The government presented a witness that maybe tied Mr. Ellis to that amount of crack, but Mr. Ellis contested that testimony.
Luckily, the 10th refuses to apply the invited error rule. The district court referred to off-the-record feedback convincing it not to submit to the jury the verdict form the 10th says it should have submitted. The record didn't reflect whose feedback that was [why are these instructions discussions off the record?]. On the record, defense counsel just said counsel had no objection to the verdict form. Defense counsel did not submit the verdict form. Not objecting did not constitute invited error. Mr. Ellis himself preserved the error for review. He went pro se at sentencing and contended he shouldn't be held responsible for all the drugs the conspiracy was involved in. "I didn't know none of these dudes" from the Mexican cartel, he eloquently argued. Importantly, Mr. Ellis was under no obligation to object to the jury instructions or the verdict form at trial. A defendant "isn't obliged to object to something inimical to his cause ensuring his eligibility for a longer sentence." "If the government wanted a heightened sentence under § 841(b)(1)(A), it was obliged to ensure the jury received proper jury instructions and a special-verdict form with spaces enabling the jury to find Ellis's individually attributable powder and crack cocaine amounts," the 10th rules. So Mr. Ellis should be sentenced under § 841(b)(1)(C).
The 10th goes against Mr. Ellis on every other issue he raised. There was sufficient evidence for the conspiracy and maintaining drug-involved premises convictions. The indictment was "close enough for government work" when it alleged Mr. Ellis maintained drug premises a month after there was trial evidence that he did. This was "reasonably near" the indictment's date. The government also presented enough evidence Mr. Ellis intended to distribute the 2.5 grams of powder cocaine in his possession when he was found with a gun in violation of § 924(c). Officers found other dealing evidence in Mr. Ellis's bag, including other drugs, a scale and an empty sandwich-bag box. The right-to-counsel-at-sentencing claim was moot, the 10th decides, and orders a full resentencing with different counsel than the counsel Mr. Ellis had at trial. Mr. Ellis's "bare assertion" that the complete breakdown in his communication with his attorney continued during the supervised-release proceeding didn't preserve the challenge to the sentence resulting from that proceeding. And, anyway, Mr. Ellis knowingly and voluntarily waived counsel during the supervised- release-violation hearing.

U.S. v. Cone, 868 F.3d 1150 (8/24/17) (Okl.) - The 10th affirms denial of a traffic-stop motion to suppress. The 10th says it's okay for an officer to ask about a driver's criminal history. The 10th has always been okay with a computer background check so that the officer knows who the officer is dealing with for safety reasons. And questions would take less time. So extending detention for criminal history questions does not violate the Fourth Amendment. A question the 10th didn't have to address was: what if the officer asked the questions and then did a background check? That would seem a bit redundant. Here the officer was about to do a background check when he discovered a gun after Mr. Cone had acknowledged a criminal history. Mr. Cone raised an interesting question about the propriety of travel plan questions [e.g. what are you doing here?] when he was already at his destination and his traffic violation was for a non-functioning license plate light. But the 10th avoids the issue. Any problem with the travel plan questions was irrelevant because those questions did not cause the gun discovery. The officer saw the gun when he legitimately asked Mr. Cone to get out of the pickup for safety reasons. Drugs were found soon after. The 10th does sort of suggest travel plan questions might make a difference if the answers prompted the officer to ask Mr. Cone to get out of the pickup for safety reasons. But the 10th relies on the district court's finding that Mr. Cone's answers had nothing to do with the officer's asking Mr. Cone to exit his pickup.
U.S. v. Ferrell, 725 F. App'x 672 (3/2/18) (Col.) (unpub'd) - The 10th reverses a § 2K2.1(b)(6)(B) enhancement for using a firearm in connection with another felony offense. The 10th finds the enhancement wasn't based on reliable facts because, in violation of Fed. R. Crim. P. 32, the district court adopted without explanation the objected-to presentence report findings that both found circumstances justifying an enhancement and adopted the plea agreement stipulations that didn't justify an enhancement. There was insufficient evidence, the 10th holds, to support that Mr. Ferrell possessed the meth, marijuana and drug paraphernalia in someone else's garage. While Mr. Ferrell was arrested in the garage, there wasn't enough evidence he possessed the contraband items because the evidence indicated he was seen leaving the house, not the garage, and he fled to the garage only after he saw parole officers.

U.S. v. Ramos, 723 F. App'x 632 (2/27/18) (N.M.) (unpub'd) - An officer unlawfully prolonged the traffic stop by questioning a passenger while making believe he was checking the VIN. The 10th finds VIN inspections to be okay, as long as the officer, as in this case, doesn't physically enter the car, see U.S. v. Caro, 248 F.3d 1240 (10th Cir. 2001). But the 10th does find the officer unlawfully extended the detention by questioning the passenger.
The 10th finds the district court's analysis of the voluntariness of Mr. Ramos' verbal and written consent is "faultless." The usual non-coercive factors prevail, e.g. no gun to the head, in public view, conversational tone, etc. Finally, the three Brown v. Illinois , 422 U.S. 590 (1975), factors indicate the consent was not tainted by the stop prolongation. First, there was close temporal proximity, which favored suppression. But, second, there was the intervening circumstance of the officer going through the typical written consent process. Third, the 10th refuses to find the officer's behavior was purposeful and flagrant, even though he admitted he conducts VIN inspections to investigate crimes other than traffic violations. The 10th relies on the lack of evidence the officer routinely extends the duration of traffic stops when he does VIN inspections. Even though the inspection took at least 80 seconds, the 10th sees no contradiction the finding that the inspection was "pointed and narrow." Most troubling of all, the 10th holds the officer was not questioning the passenger "in the hope that something might turn up" because he spotted oddities in Mr. Ramos' travel plans and suspected something was going on---"something more than an unsupported hunch," the 10th claims, but, mind you, not enough to constitute reasonable suspicion. No exclusionary rule applies here, the 10th concludes.

U.S. v. Bouziden, 725 F. App'x 653 (2/27/18) (Okl.) (unpub'd) - The 10th finds Oklahoma's manslaughter statute divisible and manslaughter in the heat of passion to be a "violent felony" under the ACCA. The 10th finds the statute divisible even though the same punishment applies to each of 3 subsections. The 10th relies on cases and jury instructions treating the subsections as separate crimes. Accordingly, the 10th applies the modified categorical approach and finds Mr. Bouziden was convicted of manslaughter in the heat of passion. The general intent of that crime is enough mens rea for the ACCA's elements clause. And killing another person requires the use of violent force under Johnson I, 559 U.S. 133 (2010), the 10th says.

Starr v. Quiktrip Corporation, 726 F. App'x 692 (3/1/18) (Okl.) (unpub'd) - The 10th holds Batson doesn't protect jury selection discrimination against military veterans. Prior military service isn't an immutable attribute and, according to the 10th, "veterans aren't saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process."
U.S. v. Ortiz-Lazaro, 884 F.3d 1259 (3/16/18) (N.M.) (Published) - The 10th affirms reentry and reentry-revocation sentences challenged on multiple grounds. The 10th acknowledges § 3553(c)(2) requires a statement of specific reasons for imposing a sentence above the sentence range the Sentencing Commission recommends for supervised release violations. But here the district court gave specific enough reasons to justify an upward variance from the top end of 12 months to 24 months. The 10th says it was enough for the court to note Mr. Ortiz's return to the U.S. a month after his supervised release started, his inability to conform his behavior to the supervised release terms, his "blatant disrespect" for immigration laws, and the need to protect the public from Mr. Ortiz committing serious violent offenses of the type he committed before. The district court's failure to complete a written statement of reasons, while in violation of 28 U.S.C. § 994(w)(1)(B), was harmless. The court wouldn't have changed its sentence if it had filled out the form. So there's no enforcement of § 994(w)(1)(B). The 10th also holds the district court considered the danger of unwarranted disparity by acknowledging the sentence range and then giving reasons for a sentence above the range. It sounds like that conflicts with U.S. v. Lente, 647 F.3d 1021 (10th Cir. 2010). The 10th thinks it was good enough for the district court to say it considered the § 3553(a) factors in explaining why it imposed the revocation sentence consecutively to the reentry sentence, as the policy statements recommend. The 10th explains: "We don't require the court to consider each § 3553(a) factor individually." The 10th finds the sentences to be substantively reasonable for the reasons the district court gave. The 10th is untroubled by the district court's statement that it relied on a non-existent violation report. No harm, says the 10th. Finally, the 10th rejects the argument that the district court giving the identical reasons for both sentences established a double jeopardy violation. No error, the 10th concludes, because Mr. Ortiz was sentenced for two separate crimes.

U.S. v. Banks, 884 F.3d 998 (3/6/18) (Okl.) (Published) - The 10th affirms Mr. Banks' 16 drug-related convictions and sentence. (1) The 10th affirms the suppression denial. There was probable cause for an arrest warrant even though there was no controlled buy. Three Confidential informants (CIs) corroborated each other with consistent reports about the drug-trafficking organization and two identified Mr. Banks as a member. Officers' independent investigation confirmed some aspects of their statements.
(2) The 10th finds sufficient evidence for all 16 convictions. Mr. Banks' knowing possession of the cocaine in a hamper in someone else's house was established by Mr. Banks' statement to his mother during a recorded jail call that the cocaine was his. Not considering evidence indicating otherwise, when Mr. Banks said "my shit," he meant "my drugs." Mr. Banks' knowing possession of the cocaine and gun in another person's attic was established by his girlfriend's testimony that he kept crack in the hotel room from which they went to the house with the attic.
(3) The 10th finds the district court didn't abuse its discretion in its evidentiary rulings. The initial overview testimony about the structure of the gang, including Mr. Banks' place in its hierarchy, and how the investigation began was okay. Other evidence supported the testimony, the 10th finds, including Mr. Banks' own mother testifying he sold drugs. The witness never offered an opinion about the trustworthiness of Mr Banks or any upcoming witness or about Mr. Banks' guilt. Evidence of Mr. Banks' 3 prior drug-related convictions was admissible under Rule 404(b). Mr. Banks' primary defense was lack of knowledge. So the convictions countered that defense and, besides,"our court has time and again held that past drug-related activity is admissible under 404(b)."
Judge Phillips dissents on a protective sweep issue. He notes the officers could have kept safe by just driving away once they arrested Mr. Banks outside the house. He also points out officers took their time on this sweep to examine items unconnected to the supposed hiding gang member, e.g. the Oster bag, wallet and photograph. He further observes, if the officers were really worried about the gang member endangering their safety, they wouldn't have entered the attic the way they did: officers hoisted another officer to push a panel aside and lift his head into the attic to see what was there. Judge Phillips opined that, while some times a protective sweep can be justified by an outside-the-house arrest, the justifications for such a sweep must be more compelling than in the in-house arrest circumstance. In this case, Judge Phillips found insufficient reason to suspect the gang member was in the house and endangering people. Several hours had passed since Mr. Banks' threats, an officer had heard only one male voice in the house, no officer bothered to run the license plate of the car in the driveway and there was no explanation how someone in the attic could be a danger to the officers outside the house.

Kendall v. Olsen, 2018 WL 1294174 (3/15/18) (unpub'd) - The 10th holds a warrantless search of a backyard was justified by exigent circumstances. Officers canvassed the neighborhood to find a three-year-old boy who had been missing for about one hour. Mr. Kendall's house was 10 houses from the boy's house. An officer searched Mr. Kendall's backyard looking for the boy and ended up shooting and killing Mr. Kendall's attacking dog. The 10th finds the officer had an objectively reasonable basis to believe there was an immediate need to take action to protect the boy from serious injury because he had apparently wandered off and the chances of finding the boy unharmed was decreasing rapidly with time. There was no need for any specific information indicating the boy was in that particular backyard. And the search's scope was properly limited to looking in places the officer couldn't see from outside the yard and that were accessible to the boy.

Rusk v. Tymkovich, 714 F. App'x 913 (3/14/18) (Utah) (unpub'd) - The panel refuses to recuse itself even though Chief Judge Tymkovich was the defendant in the case. The 10th cites its "duty to sit" and the "rule of necessity' that a judge is qualified to decide a case even if he or she would normally not be allowed to do so.
United States v. Roach, 2018 WL 3543151 (10th Cir. July 24, 2018)(published): Roach was convicted of coercing another into prostitution in violation of 18 U.S.C. § 1591(a)(1). On appeal he argued the district court’s ruling restricting his cross-examination violated the Confrontation Clause and the Federal Rules of Evidence. The panel held Roach forfeited the Confrontation Clause argument because his pretrial motions did not mention the cross-examination topics he tried to pursue at trial and at trial he did not “state a Confrontation Clause ground on which the court should permit the cross-examination” on those topics. (The panel dismissed the evidentiary rules argument because even if there was error, it was harmless.) To preserve an objection to the exclusion of evidence (or an excluded line of cross-examination questioning), counsel must make an offer of proof at trial, (a) describing the evidence and what it tends to show - i.e. the particular topic for cross-examination - and (b) identifying the grounds for admitting the evidence - i.e. the legal basis for the cross-examination questions (Confrontation Clause and pertinent evidentiary rules). The offer of proof may be made during questions and objections at trial, in motions in limine or at pretrial conferences. Remember, on appeal one “forfeits” a challenge to the court restricting cross-examination if one uses a different ground to support the objection than one did at trial.
Roach filed a pretrial motion which argued that according to the Confrontation Clause, he should be allowed to question a cooperating co-defendant about her “deal with the Government.” The district court agreed and let him do so at trial. However, at trial he also wanted to ask her about the potential sentence she could receive if she did not cooperate. The court did not let him question her on this topic and on appeal Roach said that decision violated his Confrontation Clause rights. The panel disagreed.

United States v. McLinn, 2018 WL 3542978 (10th Cir. July 24, 2018)(published): According to 18 U.S.C. §922(g)(4), a person who has been adjudicated a mental defective, or who has been committed to a mental institution, is prohibited from possessing a firearm. McLinn was charged with violating this statute based on his prior temporary detention at a Kansas mental institution. He pleaded guilty conditionally and preserved for appeal the issue of whether it is a matter of fact or law if someone has been adjudicated a mental defective or has been committed to a mental institution as described § 922(g)(4). In the district court, he moved to dismiss the charge under Fed.R.Crim.P. 12(b)(3)(B)(v), claiming that, as a matter of law, this prior detention did not disqualify him from possessing a firearm under § 922(g)(4). The court found that the issue was one of fact, not law, and denied the motion without prejudice. The circuit panel agreed with McLinn. On remand, it said, the district court must decide as a matter of law: (1) whether a state court’s determination that there was “probable cause to believe that McLinn was suffering from a severe mental disorder, that he lacked the capacity to make an informed decision concerning treatment and was likely to cause harm to himself or others was a sufficient adjudication under the statute” and (2) whether McLinn was “‘involuntarily committed’ to a mental institution given that this term has been defined in 27 C.F.R. § 478.11 to exclude commitment ‘for observation.’”
U.S. v. Pacheco-Donelson, 893 F.3d 757 (6/22/18) (Colo.)(published) – Mr. Pacheco-Donelson appealed a special condition of supervised release, which banned him from associating with any gang members. He challenged the ban only with respect to its inclusion of two of his foster brothers.
Mr. Pacheco-Donelson did not object in district court based on procedural reasonableness. The 10th determined he did show plain error. Additionally, the 10th found that the special condition was substantively reasonable because it was reasonably related to the statutory sentencing factors and did not deprive Mr. Pacheco-Donelson of greater liberty than reasonably necessary.

U.S. v. Vance, 893 F.3d 763 (6/22/18) (N.M.) –The 10th held that a police detective had reasonable suspicion for a traffic stop based on a lane change contrary to N.M. Stat. Ann. § 66-7-317(A). Mr. Vance argued that he did not violate the statute. The government asserted the traffic stop was valid under Heien v. North Carolina, 135 S.Ct. 530, 536 (2014) (“The question here is whether reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition. We hold that it can.”), and that Mr. Vance violated the statute by not ascertaining the safety of his multi-lane movement. Judges Kelly and Murphy determined that the district court did not clearly err in finding that Mr. Vance could not have adequately determined whether his lane change could be made with safety, because a . . . passenger vehicle in the center lane blocked his view. Vance, 893 F.3d at 774.
In a concurring and dissenting opinion, Judge Phillips opined that the statute allowed Mr. Vance to change lanes so long as he ascertained safety and that the detective lacked reasonable suspicion for the stop. Vance, 893 F.3d at 776. Judge Phillips concluded: “I see no cases cited from the government authorizing stops to try to obtain confessions about conceivable crimes—or in hopes of finding evidence of unknown, unrelated crimes, evidence such as the smell of marijuana Detective Rael detected soon after the stop. We shouldn’t authorize stops in such circumstances.” Vance, 893 F.3d at 777.
U.S. v. Ford, 882 F.3d 1279 (2/23/18) (N.M.) (Published) The 10th finds to be ripe a challenge to a sex-offender-assessment supervised release condition and affirms the condition based on a 19-year-old sex offense. Mr Ford was sentenced to 20 years for various firearm-possession charges. Judge Parker imposed sex-offender supervised release conditions because 19 years ago when Mr. Ford was 17 he was convicted of a sex offense involving a 13-year-old girl. While the case was on appeal, Mr. Ford received a state life without parole (LWOP) sentence for killing a cell mate. On appeal, Mr. Ford challenged the conditions that he submit to a sex offender assessment and, if directed by the probation officer or treatment provider, a polygraph test. The 10th finds the assessment condition ripe for consideration, despite Mr. Ford's long federal sentence and LWOP state sentence. The 10th thinks it's simpler just to consider the issue now and it wasn't sufficiently certain Mr. Ford would never be on supervised release, given the possibility of overturning his state conviction or sentence on direct appeal or in future habeas proceedings. But the polygraph condition wasn't ripe yet because whether Mr. Ford would have to submit to the polygraph is contingent on treatment being recommended and polygraph testing being directed as part of that treatment.
The 10th finds no abuse of the district court's "broad" discretion to impose the assessment condition even though Mr. Ford has never been involved in any sex offense since he was 17. The 10th relies on: the fact that the sex offense victim was a minor; there was no record of any prior assessment or treatment; and Mr. Ford has been incarcerated almost continuously since his sex offense, "leaving him few chances to relapse."

Tax Fraud-related Convictions Affirmed

U.S. v. Ray, 2018 WL 3716080 (8/6/18) (Colo.) (published) - Mr Ray was convicted of conspiracy to defraud the US, five counts of aiding in the preparation of a false tax return, and two counts of submitting a false tax return connected with his tax prep business, Cheapertaxes LLC. The Tenth rejected his claims as follows:
(1) the government never lodged a detainer with Colorado and thus did not violate the Interstate Agreement on Detainers Act.
(2) there was no proof of facts establishing actual or presumptive prosecutorial vindictiveness leading to extra superseding indictment counts.
(3) Ray waived his speedy trial act claim by failing to raise it in his pretrial motion to dismiss and the Tenth says it would have rejected such a claim on the merits anyhow.
(4) Ray did not establish a due process violation based on the government's destruction of a letter he wrote to the IRS. He did not show either that the letter would have been exculpatory or that the government destroyed it in bad faith.
(5) the district court did not constructively amend the indictment by reading a slightly revised version to the jury; the Tenth concludes the district court actually narrowed the scope of the count at issue.

Wednesday, July 25, 2018

United States v. Chavez-Morales, 2018 WL 3233698 (10th Cir. July 3, 2018)(published): Mr. Chavez argued the district court’s sentencing procedure was unreasonable because it did not meaningfully consider his argument that economic opportunities motivated his illegal reentry and thereby mitigated the seriousness of his offense. He also said the court plainly erred by imposing a supervised release term without acknowledging or considering USSG § 5D1.1(c) which counsels a court not to impose supervised release when the accused is deportable and likely will be deported after his imprisonment term. The panel affirmed the district court’s procedure and sentence, but along the way made some helpful remarks.

First, it said to preserve a procedural reasonableness challenge based on the district court’s failure to consider and explain its reasons for rejecting an argument for lesser sentence, counsel must alert the court that its explanation was inadequate which ordinarily requires an objection after the court announces the sentence.

Second, (and please note these comments are made in a case where the court is reviewing an upward variance - the circuit has not set a rigorous standard for explanations when a sentence is within the guideline imprisonment range) if an accused raises a nonfrivolous argument that § 3553(a) factors warrant a sentence below the recommended imprisonment range, the appellate court must be able to discern from the record that the court considered whether the sentence imposed actually conforms in the circumstances to the statutory factors. This means the court must adequately explain the chosen sentence in light of the sentence requested by the accused. When the court fails to mention a ground which is recognized as a reason for giving a lower sentence it is likely to have committed an error. This does not mean that the court must accept the argument, but if it has some merit ordinarily it will deserve explicit comment. Here, because Chavez argued that economic incentives in the US motivated him to enter illegally which lessened the seriousness of his offense, “the district court needed to address the argument before imposing an above-Guidelines sentence.” The court did not err because it adequately addressed Chavez’s argument.

Third, a district court errs when it does not acknowledge or consider the guidance of a relevant guideline and its accompanying commentary. Here, the court erred because it did not acknowledge or consider USSG § 5D1.1(c)’s recommendation that ordinarily a court should not impose supervised release in reentry cases. However, since supervision can be imposed if it would provide “an added measure of deterrence”, the sentence was not reversed because the panel found “threads of a deterrence rationale” in the district court’s explanation for the term. One final comment, although the panel finds error it fails to mention that § 5D1.1's application note 5 says “added measure of deterrence and protection [of the public].” One may argue then that supervised release in a reentry case is not warranted unless the court can demonstrate that it is necessary to address both concerns.

Tuesday, July 24, 2018

United States v. Young, 893 F.3d 777 (10th Cir. 2018): The panel finds the guidelines reckless endangerment enhancement applies even when an accused makes verbal threats against an officer while fleeing and when he has stopped fleeing but is in a standoff with police. Young’s verbal threats created a dangerous situation for the police when they pursued him because he was armed and had expressed an intention to shoot if they took action. Besides “if the police were to shoot, they could have accidentally shot a fellow police officer.” Also, during flight is construed broadly and includes conduct while resisting arrest. Young was “resisting arrest during the standoff, disobeying police commands to exit his vehicle.” (NOTE for appellate types: the panel reviewed the issue de novo because Young didn’t challenge the district court’s factual findings, he argued instead that the facts are insufficient as a matter of law to warrant the enhancement.)

United States v. Ibanez, 893 F.3d 1218 (10th Cir. 2018): Because Ibanez challenged the substantive reasonableness of his within guideline sentence, to rebut the presumption of reasonableness the 10th Circuit attaches to that sentence, he was required to show “the statutory sentencing factors render the sentence unreasonable.” Ibanez argued only that the USSG § 2K2.1 (a)(4)(B), the enhancement for possession of a semiautomatic weapon by a prohibited person, was unreasonable. Because Congress allowed the ban on semiautomatic assault weapons to lapse - the statute on which the enhancement was based - there no longer was a sound basis for the guideline enhancement. The panel disagreed for two reasons. First, the reasonableness of the guideline is irrelevant because the district court had the discretion not to apply it. Second, according to the sentencing commission’s own policy judgment, the enhancement was necessary because the public is endangered when prohibited persons possess large-capacity magazines.

United States v. Hull, 893 F.3d 1221 (10th Cir. 2018): The panel finds that a standard supervised release condition in which the accused is required to notify third parties “of risks he may pose to them” is not unconstitutionally vague, an unconstitutional delegation of judicial authority, or an unlawful occupational restriction. The condition is not unconstitutionally vague because the district court said the risk would be assessed in the context of Hull’s prior convictions for home invasion robberies and bank robberies, i.e when others “may be at risk for financial or physical harm.” (The panel questioned whether, after Beckles, one can challenge on due process grounds a condition derived from the guidelines.) The condition did not unconstitutionally delegate judicial authority to the probation office since it is specific to the circumstances in which it applies and the probation department is not deciding the nature of extent of Hull’s punishment. Finally, the condition is not an unlawful occupational restriction because unlike the conditions struck in Souser and Mike, it does not require “to notify and all employers of his convictions.”

Colorado first-degree trespass not a crime of moral turpitude; Venzor-Granillo overruled

Lujan-Jimenez v. Sessions, 839 F.3d 704 (10th Cir. 2018): Lujan appealed a BIA final order of removal. The panel found the BIA incorrectly concluded Lujan’s Colorado conviction for first degree criminal trespass was a crime of moral turpitude. That offense can be committed by unlawfully entering a “motor vehicle with intent to commit a crime therein.” The BIA held that the particular crime intended is an element of the offense and therefore, the statute was divisible. The panel disagreed, it said that according to the Colorado Supreme Court, an information charging only that a defendant intended to commit “a crime” contains “all essential elements of the crime of first degree criminal trespass.” It added that in other Colorado cases involving similar crimes, juries have been instructed as to alternative ulterior offenses (e.g. either the accused intended to commit theft or arson). The panel concluded that because the crime intended was a means by which the trespass offense is committed, the Colorado statute was not divisible as to the particular ulterior offense. It also said that a case which held the opposite, United States v. Venzor-Granillo, 668 F.3d 1224 (10th Cir. 2012), cannot be reconciled with the approach to divisibility set forth in Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) and is therefore no longer good law. Colorado first degree criminal trespass sweeps more broadly that the definition of a crime involving moral turpitude.

Monday, July 23, 2018

Underwood v. Royal, 2018 WL 3215764 (10th Cir. 7/2/18) (Okla.) - affirmance of habeas denial on six grounds in Okla. death penalty murder case.
1. There was no ineffective assistance of trial counsel in failing to present expert testimony on rebuttal regarding the timing of the victim's death. The state court concluded that presentation of such testimony might have done more harm than good. The Tenth decides that the Okla. court did not unreasonably apply Strickland in determining that trial counsel's strategy was at least reasonable.
2. The evidence discussed by the prosecutor at trial that Mr. Underwood argued amounted to prosecutorial misconduct did not unfairly overshadow other depraved things that Mr. Underwood freely admitted and thus did not render his trial so fundamentally unfair as to deny him due process.
3. The state court did not reach a decision contrary to or unreasonably applying Supreme Court law or unreasonably determining the facts with respect to the jury instruction on mitigating circumstances challenged by Mr. Underwood.
4. The concededly unconstitutional admission of the victim's parents' impact statements and recommendations for imposition of the death penalty at his trial was not structural error. The offending statements did not have a substantial and injurious effect or influence on the jury verdict because they were relatively brief and emotionally restrained; the aggravating case was relatively strong; and the mitigating case was insufficient to overcome the aggravating evidence.
5. The Okla. court did not decide contrary to clearly established Supreme Court law or unreasonably apply it by deciding that it was not reversible error to fail to instruct the jury that it must find the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt .
6. The cumulative effect of the alleged errors on the jury's sentencing determination did not entitle him to habeas relief.
U.S. v. Thompson, 72 F. App'x 492 (1/9/18) (N.M.) (unpub'd) - The 10th holds New Mexico attempts are "attempts" under the ACCA's elements clause. Mr. Thompson argued New Mexico attempt includes just "slight acts," not the substantial steps required by the ACCA. The 10th finds New Mexico requires an attempt to be more than preparation, not necessarily the last act before completion, but at least the first or some subsequent step in a direct movement toward the offense's commission. That's good enough for the ACCA, the 10th holds.

U.S. v. Robinson, 720 F. App'x 946 (1/9/18) (Okl.) (unpub'd) - Interesting concurrence by Judge Holmes on what is generic burglary. The majority rejects Mr. Robinson's Johnson challenge to counting his burglary as an ACCA enumerated offense based on U.S. v. Snyder, 871 F.3d 1122 (10th Cir. 2017). The majority uses the modified categorical approach that it couldn't use now under Mathis and finds that back when Mr. Robinson was sentenced he was convicted of burglarizing a house, not a vehicle being used as a residence. So his ACCA sentence that would be unconstitutional now is okay because, due to the application of incorrect law. It wasn't based on the residual clause at the time it was imposed. Judge Holmes opines that Shepard v. United States, 544 U.S. 13 (2005), has abrogated U.S. v. Spring, 80 F.3d 1450 (10th Cir. 1996), which held a motor vehicle used as a home was a "structure" under the generic burglary definition, even though Taylor said that a motor vehicle was not a generic structure. Judge Holmes thought Shepard's description of a generic burglary as unlawful entry into "an enclosed space, not a boat or motor vehicle" scuttled Spring. The Supremes will decide the question next term in U.S. v. Sims and U. S. v. Stitt.

Friday, July 20, 2018

U.S. v. Arnold, 878 F.3d 940 (12/27/17) (Okl.) - The 10th upholds a forfeiture order. The 10th holds it was okay under Fed. R. Crim. P. 32.2 for the district court to amend a preliminary general forfeiture order once the amount of the money judgment was calculated. There were ongoing disputes regarding restitution that made the forfeiture amount uncertain until the court resolved the disputes. The 10th finds the indictment gave Mr. Arnold sufficient notice of a possible forfeiture. The indictment doesn't have to allege an approximate amount, a method of computation or what are the substitute assets involved. The 10th also concludes the statutes mandating restitution and forfeiture do not allow a defendant's payments towards one to offset the amount owed to the other.

Farrell v. Montoya, 878 F.3d 933 (12/27/17) (N.M.) - The 10th rules in favor of an officer in a § 1983 civil rights case regarding an incident that acquired a lot of notoriety in New Mexico where, near Taos, an officer fired three shots at a car with five kids in it.. The 10th holds the Farrells were not seized when the officer fired shots at them because when they fled they were not submitting to the officers. A momentary pause from fleeing would not constitute a seizure. A person must really submit to police authority before there's a seizure. The 10th rejects the Farrells' argument that, at the time of the shots, there was an ongoing seizure because at first the mother submitted to the officer making a traffic stop. Calling 911 and looking for a police station while fleeing did not a seizure make. The Farrells' subjective intentions are irrelevant, the 10th rules.

Jury improperly instructed regarding drug quantity findings

U.S. v. Johnson, 878 F.3d 925 (12/22/17) (Kan.) - The 10th finds a reversible plain Alleyne error. The district court instructed the jurors on drug quantity, but did not tell them they had to find at least 280 grams of cocaine base beyond a reasonable doubt. Preponderance was all the court required. The sentence to a 10-year mandatory minimum was plain error. It was reversible because, although the government presented sufficient evidence of Ms. Johnson's connection to the requisite quantity, that evidence wasn't overwhelming. The CI never saw Ms. Johnson sell or cook crack, or handle lots of money, she didn't drive co-conspirators to the drug transactions that made up the bulk of the quantity, no drug-related stuff was found in her home, discussed quantity amounts were often inflated; and coded language in wiretapped phone calls was subject to wildly different interpretations.

The 10th does find sufficient evidence to support the quantity calculation for guideline purposes because of the evidence that Ms. Johnson was a member of the conspiracy during the period the CI bought drugs from co-conspirators. And the 10th says it was not error to employ the preponderance-of-the-evidence standard to the question whether the wire-tapped calls were initiated in the territorial jurisdiction of the state court.

unpublished decisions

U.S. v. Mobley, 720 F. App'x 441 (12/19/17) (Kan.) (unpub'd) - The 10th reverses a detention order because neither the district court nor the magistrate judge made sufficient findings under § 3142. The government charged Ms. Mobley with international parental kidnaping. The magistrate judge just checked a box that no combination of conditions will assure the defendant's appearance. The 10th faults the judge for providing "very little supporting analysis," having no discussion of why the proposed release conditions couldn't assure Ms. Mobley's appearance and making "scattered, cursory" references to the § 3142(g) factors The judge's findings were also lacking because the judge didn't mention Ms. Mobley's affirmative defense that she was fleeing domestic violence, which, the 10th says, has a potential effect on the weight of evidence, a relevant factor. The 10th rules the district court's analysis was incomplete because it "only" relied on the nature of the offense, Ms. Mobley's history of noncompliance with court orders and the court's fear she would flee again. The 10th criticizes the court for not considering whether any conditions would assure an appearance where Ms. Mobley offered to submit to electronic monitoring, have her parents pay a bond and turn in all her passports. The 10th was also unhappy that the district court didn't consider Ms. Mobley's affirmative defense, despite documentary evidence indicating she did endure domestic violence. The 10th isn't impressed with the court referring to Ms. Mobley's flight as "vigilante justice.". The 10th remands for findings or pretrial release on conditions.

U.S. v. Ingram, 720 F. App'x 461 (12/22/17) (okl.) (unpub'd) - The 10th holds the good-faith exception salvages a search based on a warrant that provided "only a tenuous nexus" between drug activity and Mr. Ingram's home. There was ample evidence Mr. Ingram dealt drugs. This, combined with the assertion that a high-level drug trafficker probably keeps incriminating records at his home, was enough for good faith. The 10th notes that there was no assertion that illegal drugs were in Mr. Ingram's home. It cautions that it's not announcing a "broad rule making a suspected drug dealer's house fair game for searches absent evidence of contraband there." But here the warrant affidavit wasn't so devoid of factual support to render police reliance on the judge's warrant issuance to be objectively unreasonable.

U.S. v. Etenyi, 720 F. App'x 445 (Kan.) (unpub'd) - The 10th affirms Mr. Etenyi's identity-fraud-related offenses. The 10th holds that to prove Mr. Etenyi produced a state-issued identification document without lawful authority in violation of 18 U.S.C. § 1028(a)(1) it need not prove he obtained the driver's license from someone who had criminal intent. In this case, the state employee who issued the license was an innocent person duped by Mr. Etenyi. A person cannot insulate himself from punishment by manipulating innocent third parties to perform acts on his behalf that would be illegal if he performed them. The 10th also rules that Mr. Etenyi was guilty of violating the aggravated Identity fraud statute even though his brother willingly gave him an employment identification card to get the driver's license.

Search of car's trunk was ok; restriction on cross examination of witness was harmless error

U.S. v. Mirabal, 876 F.3d 1029 (11/29/17) (N.M.) (published) - The 10th affirms Mr. Mirabal's convictions rejecting several challenges, including regarding a car search and cross-examination restriction. The 10th finds a car search to be reasonable in the following circumstances. Officers concededly had probable cause to search for an assault rifle, which officers thought they saw Mr. Mirabal put in his car trunk. An officer stopped the car for speeding. He looked in the trunk and saw a long speaker box that he testified blocked his view of the back of the trunk. So the officer entered the back seat, pulled an arm rest down to look in the back of the trunk and found cocaine. An assault rifle was nowhere to be found. The 10th acknowledges the officer could only look where a rifle could be hidden.

The 10th assumes it was a Confrontation Clause violation to prevent cross of a cooperating witness about his plea agreement and how much he expected his sentence to be reduced because of his testimony, but finds any error to be harmless beyond a reasonable doubt. The witness's testimony was "extensive and important," the 10th admits. But it was corroborated by other witnesses. On the other hand, the witness's influence was still "substantial" because he was intimately involved in Mr. Mirabal's enterprise. On the other, other hand, the prosecution's overall case was strong: an "enormous array of wiretapped calls" combined with officers observing Mr. Mirabal meeting with buyers at the arranged times. Plus, the government strongly countered Mr. Mirabal's defense that he was talking about marijuana wax, not cocaine. And "most critically," the 10th says, the witness was extensively crossed on his reliability and motive, "sullying" his credibility as much as a fuller cross would have done. Mr. Mirabal was able to cross about the witness's drug abuse history, criminal history, his inconsistent statements and that, because he was testifying for the government, he expected a lower sentence without a career offender enhancement. Plus a jury instruction told the jury to assess the witness's testimony with caution in light of all the credibility problems. So harmless.

The 10th holds there was sufficient evidence for: (1) crack conspiracy [there was evidence Mr. Mirabal arranged to manufacture and sell crack]; possession with intent to distribute powder cocaine [cocaine was found in Mr. Mirabal's car and there was evidence he was transporting the cocaine to sell it]; firearm possession [firearm was found in Mr. Mirabal's home where he lived alone]; and body armor possession [body armor was found in Mr. Mirabal's storage locker]. Mr. Mirabal didn't show bad faith destruction of drugs where authorities destroyed the drugs based on an existing policy and filed a notice announcing the destruction.

Defendant's Confrontation Rights Were Not Violated When State Introduced Depo of Witness at Trial

Acosta v. Raemisch, 877 F.3d 918 (12/15/17) (Col.) - The 10th denies § 2254 habeas relief, rejecting arguments that the state didn't do enough to produce a witness for Confrontation Clause purposes and that the denial of Mr. Acosta's right to counsel was structural error. The only eyewitness to the killing of the victim was difficult to track down. She kept disappearing whenever she was released from custody. In light of that fact, she was deposed. After not appearing for a hearing, she was arrested and kept in custody so she could testify at Mr. Acosta's co-defendant's trial. The jury convicted the co-defendant of manslaughter. The eyewitness was released after Mr. Acosta's trial was delayed due to his counsel's conflict and the need to get new counsel. At a hearing without counsel, Mr. Acosta waived his right to a speedy trial and at a later hearing outside of his and his counsel's presence, the eyewitness was released. True to form, the eyewitness disappeared. Unbeknownst to the prosecution, she was arrested by local officers on a different matter on the same day her deposition was introduced into evidence at Mr. Acosta's trial. The jury convicted Mr. Acosta of first-degree murder.

The 10th holds it was reasonable for the state courts to find the state tried enough to get the eyewitness to testify at Mr. Acosta's trial where the state investigators: checked the eyewitness's last known addresses; visited the post office to see if the eyewitness filed a change of address form [not likely]; got information the eyewitness had no permanent address, lived in the streets and was hiding to avoid testifying; spoke twice a week with the eyewitness's cooperative grandfather; enlisted the aid of a unit that looked for the eyewitness on the streets in areas she was known to frequent; and searched for the eyewitness along a certain street she had frequented. The 10th says it doesn't matter whether the trial court should have done a better job of keeping tabs on the eyewitness. What mattered is whether the prosecution engaged in a good-faith effort to produce her for trial. Even though there were other things the state could have done, like check arrest records. The Sixth Amendment doesn't require the prosecution to exhaust every possible means of producing a witness. So the state's finding of law that there was good faith was reasonable. The admission of the deposition didn't violate the Confrontation Clause.

The 10th assumes Mr. Acosta's right to counsel was violated at the hearings where he waived his speedy trial rights and where the eyewitness was released. The error was not structural, the 10th rules. There is such an error only when it "infects the entire trial process," the 10th says. Here Mr. Acosta had counsel all the time after those two hearings. The counsel denial didn't contaminate the rest of the proceedings, the 10th holds, and so that's good enough to avoid habeas relief. The 10th is okay with the trial court's finding that Mr. Acosta knowingly waived his right to a speedy trial, even though he did so without counsel. The 10th also sees no legitimate complaint that the lack of counsel caused the loss of the eyewitness's testimony. There was no Confrontation Clause violation. The 10th is convinced the error had no impact on the verdict.

KS Aggravated Assault with a Deadly Weapon is a "Crime of Violence"


U.S. v. Benton, 876 F.3d 1260 (12/8/17) (Kan.) - Kansas aggravated assault with a deadly weapon satisfies the "crime of violence" definition in USSG § 4B1.2(a). The offense's elements are intentionally placing another person in reasonable apprehension of immediate bodily harm with a deadly weapon. First, the 10th relies on U.S. v. Ontiveros, 875 F.3d 533 (10th Cir. 2017), which relied on U.S. v. Castleman, 134 S. Ct. 1405 (2014), to hold it doesn't matter if the threatened bodily harm comes indirectly, e.g., through poison, or directly. Second, the 10th rejects Mr. Benton's argument that the crime could be committed with a harmless object that isn't capable of using enough force to be capable of causing physical pain or injury. The 10th says the definition of a deadly weapon thwarts Mr. Benton's argument. A deadly weapon is an instrument which, from the manner in which it is used, is likely to produce death or serious bodily injury. So, the 10th concludes, because a threat of death or serious bodily injury is at least force capable of causing physical pain or injury, the force required to convict someone of Kansas aggravated assault with a deadly weapon is violent physical force.

Defense win: Good faith exception does not save search pursuant to overbroad warrant

U.S. v. Dunn, 719 F. App'x 746 (12/12/17) (Col.) (per curiam) (unpub'd) - A really nice lack-of-warrant-particularity defense victory against the good-faith demons, courtesy of Judges Bacharach and O'Brien [with Judge Gorsuch on the panel but not voting]. The warrant to search Mr. Dunn's apartment said "the items to be searched for and seized include but are not limited to" a list of 9 items related to a stabbing. The 10th concludes the warrant authorized a search for everything in the apartment for any reason. The 10th finds it significant that the "not limited to" language applied to all the evidence categories. The affidavit didn't cure the lack of particularity because the affidavit wasn't attached to the warrant and the warrant didn't incorporate the affidavit by reference, although it did say an officer filed an affidavit and that the warrant's authorization is on the basis of the affidavit's information. The warrant's bad part couldn't be severed from the rest of the warrant because the invalid part was so broad and invasive it contaminated the whole warrant. Even though officers didn't search beyond what they would have been allowed to search under a valid warrant, the good faith exception didn't apply because the defect was so obvious, as a less broad defect was in Cassady v. Goering, 567 F.3d 628, 635 (10th Cir. 2009). The exclusionary rule's purpose is served by "reminding officers the particularity requirement is more than a technicality."

Thursday, July 19, 2018

OK first-degree manslaughter not a serious violent felony

United States v. Leaverton, 2018 WL 3421620 (10th Cir. 7/16/18) (Okla.) (published) - Oklahoma first degree manslaughter is not a "serious violent felony" under the three-strikes provision of 18 U.S.C. § 3559(c), Although the state statute was divisible, the district court improperly relied on a minute entry from the state court docket sheet to determine the statutory subsection Leaverton was convicted under. This was disallowed by United States v. Abeyta, 877 F.3d 935, 942 (10th Cir. 2017), because Shepard documents are limited to conclusive records made or used in adjudicating guilt, which does not include docket sheets. And while manslaughter is an enumerated offense under § 3559(c)(2)(F)(i), Oklahoma manslaughter is not equivalent to generic manslaughter. The Oklahoma offense is broader than the Model Penal Code definition of manslaughter because the state offense does not require intent to kill. The government did not argue in the district court that Oklahoma manslaughter qualifies under the § 3559(c)(2)(F)(ii) elements clause, so the Tenth declines to consider that argument on appeal.