Wednesday, May 25, 2005

Evidentiary and Booker Issues

U.S. v. Yazzie, 2005 WL 1189822 (5/20/05)(en banc) - The 10th rejected the defendant's Booker argument. There was no constitutional error because the district court's sentence based on the two level enhancement was the same amount of time as the highest end of the lower range that was determined solely by the defendant's admissions. The non-constitutional plain error did not warrant reversal because the 4th prong of the test was not met, despite the sentence at the bottom of the range. The defendant had not met his burden to show the d.ct. would have sentenced him differently under an advisory guideline regime since the district court already considered and rejected many of the § 3553(a) factors, apparently when it rejected his downward departure motion [which the district court evaluated under the mandatory regime].

The 10th also affirmed the d.ct.'s denial of a motion to withdraw the plea because counsel had thoroughly reviewed with the defendant his options prior to the guilty plea.

U.S. v. Dowlin, 2005 WL 1155882 (5/17/05) - It was error for the d.ct. to exclude on hearsay grounds third-party statements regarding the validity of a gold certificate that the investment fraud defendant was accused of falsely claiming was valid. The statements were not introduced to prove their truth but the basis of the defendant's belief in the certificate's authenticity. But, the error was, alas, harmless. Preservation alert! Simply offering evidence is not enough to preserve the issue of its exclusion unless the defendant objects to the exclusion and explains why the evidence is admissible to the d.ct. Exclusion of other evidence was okay because it was irrelevant. It was also not error to deny a continuance to allow testimony because the defendant was not diligent in obtaining the witness sooner, a continuance would have caused lots of inconvenience and the testimony wasn't all that important.

The 10th disapproved of a portion of the reasonable doubt instruction that said: "if you view the evidence as reasonably permitting two inferences , innocence or guilt, you should choose innocence." The instruction suggests the preponderance of the evidence standard is relevant. However, no reversal because the instruction as a whole left the jury with the correct impression. It was okay to use "should" in one sentence and to use the terms "not guilty" and "innocent" interchangeably. Viewed as a whole the instruction properly required the jury to find intent to defraud.

On the Booker front, the constitutional error was not a structural error. The defendant had to show prejudice under plain error because the defendant did not object to the facts on which her sentence was based, ample evidence supported the sentence, the defendant did not identify mitigating evidence the d.ct. failed to consider at sentencing, the statement of the d.ct. recognizing its limited discretion did not indicate an inclination to impose a lower sentence and there was nothing peculiar in the facts of the case to show a sentencing process breakdown.

Spousal Privilege Applies to Trad'l Navajo Marriage

U.S. v. Jarvison, 2005 WL 1208928 (5/23/05) - A divided 10th upheld a district court's ruling that the spousal testimonial privilege applied. The 10th held that Navajo tribal law applied and went through an exhaustive history of common law marriage under that law. The 10th affirmed the district court's finding that the defendant and the witness were married under that law because they had substantially complied with the Navajo requirements for conducting a tribal ceremony in 1953. The stormy relationship that resulted in many split-ups, (including 15 years when the defendant was living and producing children with the witness's daughter by another relationship), did not end the marriage because it could not be ended except through a divorce, which had never happened. The 10th chose not to create a new exception to the spousal testimonial privilege, as it had for the marital communications privilege, for testimony regarding child abuse within the household, (the witness allegedly saw the alleged sexual abuse by the defendant). The 10th was reluctant to create a rule that would require coercing the spouse to testify. Dissenting Judge Anderson was unimpressed by the evidence upon which the district court relied, thought it was unfair for the judge to prohibit the government from cross-examining the witness and thought the circumstances indicated the marriage was ended by the intervening 15 year relationship.

Reasonable Doubt Not Required for Sentencing

U.S. v. Magallanez, 2005 WL 1155913 (5/17/05) - The 10th rejects the argument that the d.ct. must apply a beyond a reasonable doubt standard when it makes its guideline calculations. [So, we can only make this argument to preserve it for en banc or S.Ct. review]. It was okay for the d.ct. not to accept the jury's verdict as to what quantity of meth was involved and to enhance based on its own findings. U.S. v. Watts, 519 U.S. 148 (1997), where the S.Ct. decided it was okay to consider in sentencing conduct of which the defendant was acquitted, was still good law in an advisory system. On the positive side, the 10th made it clear the d.ct. could consider the level of proof of the enhancement in deciding what sentence to impose, i.e., if the enhancement was only proven by a preponderance, the d.ct. could reduce the sentence below the enhanced range because of the lesser proof.

The 10th also held that it was not plain error for an agent to testify documents corroborated the defendant's guilt where the defendant had opened the door by saying in opening statement that the documents did not mention the defendant. The agent's testimony also provided background about the nature of the investigation. The prosecutor's questioning the snitch witnesses about their plea agreement promises to tell the truth did not improperly vouch for their credibility. Rebuttal testimony that the defendant bought meth in a particular town did not violate 608(b) or 404 because it was not presented as character evidence but as a direct contradiction of the defendant's claim he had no drug connection in that town. The evidence was sufficient to prove the defendant possessed meth with intent to distribute, despite the absence of physical evidence. The conspirators' testimony was enough.

Tuesday, May 17, 2005

Child Porn, Booker, Departure Issues

U.S. v. Riccardi, 2005 WL 896430 (4/19/05) - The 4th Amendment was violated because the search warrant did not affirmatively limit a computer search to evidence of specific federal crimes or specific types of material. However, good faith saves the results of the search from suppression because of the following factors: (1) the affidavit limited the search to child pornography; (2) the officers involved in the search were involved in the investigation throughout;; (3) an agent stopped to ask if the warrant was sufficient and a detective, upon receiving advice from a prosecutor, said it was fine; (4) the search and seizures only involved child porn. There was probable cause to search the computer based on the defendant calling teenage boys for gratification, sexual photos of boys in his house, a Kinko's receipt in his house showed he had photos digitalized and his computer was capable of storing digitalized images.

It was not a violation of the interstate commerce clause to prosecute the defendant for home-made child porn because he transported the subjects across state lines, there was an economic component since he paid the subjects and there were a large number of photos that could stimulate a commercially significant demand. Importantly, the 10th noted other circuit cases holding the application of the statute unconstitutional where there was less interstate commerce involved.

To sustain the verdict it was not necessary to have an expert testify the subjects appeared to be minors. From the 10th's review of the photos it decided a lay person who has common experience of life in observing children [naked?] would be able to draw those conclusions from observing the images. There was sufficient evidence to establish the defendant's use of a phone to commit a Kansas offense of procuring a minor to engage in sexual conduct for a performance. It was sufficient that the defendant had the minors spank themselves for only his amusement. Otherwise [horrors of horrors], a "peep show" would not be considered a "performance."

The higher offense level for producing the images that constituted the child porn applied even though the defendant produced the images "many years ago" before child porn was illegal under federal law. His possession was current. Although objection to the Sixth Amendment violation for enhancing based on judge-made facts was preserved, the error was harmless [the 10th forgot to mention constitutional violations must be proven harmless"beyond a reasonable doubt"] based on uncontested evidence at trial, the verdict indicating the jury found certain witnesses credible and the defendant not challenging the factual basis of any of the judge's findings.

A couple of cases dealing with Booker remand from the S.Ct. In U.S. v. Jardine, 2005 WL 1120323 (5/12/05), the 10th remanded a case involving a preserved constitutional violation. In U.S. v. Gutierrez-Aguiniga, 2005 WL 1125705 (5/13/05)(unpub'd), the 10th considered whether a Sixth Amendment violation was plain error that warranted reversal. Although the 10th found against the defendant, it's significant that the 10th did not simply say it's too late to raise the Booker issue if it had not been raised in the initial appeal, as the 11th Circuit has done.

Simkins v. Bruce, 2005 WL 1077718 (5/9/05) - It was a clear violation of a plaintiff's constitutional right of access to the courts when jail personnel held onto mail from the court rather than forwarding it to the plaintiff's new "residence." The plaintiff had standing to complain because the court dismissed the plaintiff's lawsuit due to him missing a deadline to respond to the order contained in the held-up mail.

U.S. v. Wheeler, 2005 WL 827168 (4/11/05)(unpub'd) - The 10th, having repeatedly reversed the d.ct.'s upward departures, ordered that the defendant be sentenced to the guideline sentence of 7 years for being a felon brandishing a firearm, rather than remanding for the d.ct. to try a new justification for its upward departure.

Wednesday, May 11, 2005

Tenth Circuit Update

Denver Justice and Peace Committee, Inc. v. City of Golden, 2005 WL 950648 (4/26/05) - The 10th makes an important distinction between detention and a pat-down search. Although officers may have had the authority to detain any person on the premises of a place being searched pursuant to a search warrant, see Michigan v. Summers, they clearly did not have authority to frisk that person unless they had a reasonable suspicion he was dangerous. Troublingly, in this case, the police were searching the peace group's offices for items such as pamphlets because the group had helped organize a protest during which some people committed vandalism. Did we misplace somewhere the First Amendment as well as the Fourth Amendment?

U.S. v. Green, 2005 WL 1060608 (5/6/05) - A further explanation after Porter (previously reported) of the extent an appeal waiver can reach to deprive a defendant of the opportunity to raise Booker issues. The defendant's agreement to waive all appellate rights except as to issues the defendant raised before the d.ct. waived the defendant's Booker arguments. The waiver was knowing, even though Blakely hadn't been decided at the time of the plea (the defendant accepts the risk of favorable case law after the plea). The waiver did not result in a miscarriage of justice. Although the en banc Hahn case held that a sentence above the statutory maximum constituted a miscarriage of justice exception to an appeal waiver, the Hahn court referred to the real statutory maximum, not the lower maximum referred to by Blakely and Booker, determined by the jury verdict and the defendant's admissions.

And, it got worse for this poor defendant. By appealing he ended up getting an additional 10 months in prison, even though the government did not appeal. The d.ct. did not have jurisdiction to reduce the defendant's sentence by 10 months pursuant to Rule 35(a). Even though the defendant filed a Rule 35(a) motion within 7 days of the oral announcement of the sentence, the d.ct. had no authority to reduce the sentence more than 7 days after,as it tried to do.

U.S. v. Cantu, 2005 WL 1060596 (5/6/05) - The officers had probable cause to obtain a search warrant to search the defendant's car based on his prior conduct connected to marijuana, an anonymous tip and his conduct on the particular night in question which was similar to his marijuana-related conduct on a prior occasion (dragging a large duffel bag from the grounds of a storage facility). More recent information "refreshed" information that might otherwise have been "stale." It was okay to detain the defendant for 2 1/2 hours while the officers tried to get a warrant . There was no evidence the officers acted less than diligently, the defendant had a lower expectation of privacy in his car, as opposed to a home, and probable cause justified a longer wait than would be justified if the officers only had reasonable suspicion.

U.S. v. Mozee, 2005 WL 958498 (4/27/05) - There was sufficient evidence to support an enhancement for using a firearm during the commission of a felony. There was sufficient evidence that the defendant intentionally shot his girlfriend, which amounted to a violation of Wyoming's aggravated assault statute, given the defendant's conflicting statements and the position the girlfriend was in when the shot was fired. The Sixth Amendment violation in imposing the enhancement met the third prong of the plain error test because there was a reasonable probability a jury might have a reasonable doubt whether the defendant intentionally shot his girlfriend. However, the fourth prong is not satisfied because under the advisory Booker regime the court would not have given a lower sentence than it did since it imposed a sentence at the high end of the guideline range.

U.S. v. Bush [no relation to the president] , 2005 WL 950650 (4/26/05) - It was okay to admit an officer's testimony that the voice on the phone that called himself "J.R." and set up drug deals was the same voice as that of the defendant whom the detective talked to face-to-face on three occasions. The testimony was helpful to the jury, even though the jury could listen to the tapes of J.R.'s and the defendant's voices, because they did not get to hear the defendant in person, since he did not testify. Minimal familiarity with a voice is required for a witness to identify a voice. There was sufficient evidence to prove J.R. was the defendant..

The 10th clarified what burden the defendant has in a challenge to the use of an uncounseled misdemeanor conviction. Once the government proves there is such a conviction, the defendant must prove not only that he had no counsel, but that he did not knowingly waive counsel. The defendant did not meet his burden here where he did not present an affidavit that he didn't waive counsel. There was no Sixth Amendment issue because the jury found enough cocaine was involved to put the defendant at the same offense level as he was put in by the d.ct. In a footnote, the 10th implied a jury could be assumed to find a fact, e.g. the defendant was a manager, based on undisputed facts, not the jury verdict itself.

U.S. v. Lawrence, 2005 WL 906582 (4/20/05) - The defendant was convicted of fraudulently billing medicare by using the provider identification number of another doctor who was not actually involved in the services provided and by labeling chelation therapy as an intravenous procedure that was covered by medicare. Importantly for appeal preservation purposes (!!!), it was not enough to preserve an issue to submit an instruction that was rejected. Counsel must also object to the rejection. The d.ct. did not err by failing to instruct in the following ways: (1) the Medicare Carriers Manual was not binding on providers (the government alleged violation of the statute, not the manual); (2) the government must prove no reasonable interpretation of the applicable regulations and relevant submitted claims would make the defendant's statements to Medicare factually correct (the defendant was repeatedly alerted to the unreasonableness of his interpretation); and (3) materiality is an element of false claim charges under 18 U.S.C. § 287 (materiality is not an element). It was also not error to instruct that the government did not have to prove the item sent in the mail was fraudulent or to instruct that the jury could infer a person intends the natural and probable consequences of acts knowingly done.

There was sufficient evidence of the defendant's fraudulent intent. The Medicare regulations were not so ambiguous as to raise a reasonable doubt regarding that element. There was sufficient evidence the misrepresentations were material, even though Medicare should have known the provider number was invalid. The d.ct. did not err by refusing to admit exculpatory statements by the doctor whose provider number was used under the residual hearsay exception because there were no indicia of reliability, given that the statement served the doctor's self-interest. in avoiding prosecution. The d.ct. did not abuse its discretion in refusing to declare a mistrial for the following juror misconduct: (1) a juror was overheard saying she had already decided the case before deliberations started (the offending juror assured the judge she would withhold decision); (2) jurors joked about punching someone if that person would be a "holdout"; (3) a jury nullification pamphlet was discovered in the jury room. The brevity of the deliberations in the complicated case (either 2 1/4 hours or 4 1/2 hours) did not indicate jury bias ("it is doubtful the length of jury deliberations could ever indicate whether a jury was prejudiced against the defendant.").

The Booker constitutional error did not meet the fourth plain error prong because the d.ct. sentenced two months above the bottom of the guideline range and denied a downward departure motion, even though it thought it had discretion to grant it on some of the grounds,. The d.ct,'s denial of other downward departure grounds because the court believed it didn't have the discretion to depart on those grounds, although relevant, did not dissuade the 10th otherwise. In the course of its discussion, the 10th indicated a d.ct. can make the same enhancement findings it did pre-Booker in the same way so long as the guidelines are not treated as mandatory.

Lawrence v. Reed, 2005 WL 1060613 (5/6/05) - It was a clear violation of due process, despite city attorney advice to the contrary and a state statute, to seize derelict vehicles without any hearing at all.

Monday, May 09, 2005

Court Remands for Resentencing

U.S. v. Clifton, -- F.3d --, 2005 WL 941581 (10th Cir. 4/25/05) - The Court rejects Ms. Clifton's challenges to her convictions for lying to a grand jury about obtaining a cell phone for a drug dealer, but orders resentencing in light of Booker. The reasonable doubt instruction was fine, despite omission of the end of the instruction that "Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs." The admission of agent testimony for impeachment purposes, if error, was harmless. The plain error standard was met re: Booker in light of the district court's statement that it would impose a lighter sentence if it could and the Court of Appeals' conclusion that the defendant's sentence was more harsh than necessary to reflect the seriousness of the offense.

Friday, May 06, 2005

Booker backlog

There are some other issues mixed into this lot, but the theme of the day is all Booker, all the time as the Court disposes of cases it had held pending its resolution of Booker plain error issues.

US v. Tedford, 2005 WL 1023434 (10th Cir. 5/3/05): In this probation revocation case in which the court imposed a 48-month sentence, the Court noted that Booker did not change the standard of review for upward departures in revocation cases; imposition of a sentence in excess of that recommended by the Chapter 7 policy statements of the Sentencing Guidelines will still be upheld "if it can be determined from the record to have been reasoned and reasonable." The Court then held that the district court adequately considered the Guidelines policy statements in imposing sentence outside recommended range after revoking probation, and the court was entitled to consider resources of probation office in imposing sentence outside recommended range after revoking probation.

US v. Souser, 2005 WL 1030440 (10th Cir. 5/4/05): The sentencing court in Colorado imposed a requirement that the defendant inform her employers of her conviction pursuant to a local policy that required such notification unless the defendant showed it was not necessary. The defendant had objected to the employer notification requirement, and the district court imposed it nonetheless. The COA reversed, finding that the local policy was contrary to 18 USC 3563(b) and USSG 5F1.3, which only allow imposition of occupational restrictions as are "reasonably necessary," and limits them to what is necessary to protect the public. In addition, the judge failed to make the findings required by USSG 5F1.5.

US Sierra-Castillo, 2005 WL 1023341 (10th Cir. 5/3/05): In this aggravated reentry case, the judge had denied the defendant a departure based on family circumstances because the circumstances were not outside the heartland "in this part of the jurisdiction" (emphasis added). The Court held that, contrary to the district court's statement, the heartland under the Guidelines is national in scope and is not limited to a particular jurisdiction or portion of a jurisdiction. However, any error in misdefining the heartland was harmless because the defendant did not provide any support for his claim that family circumstances warranted departure. In addition, the age of his prior conviction used to support the enhancement was not a basis for departing downward. Finally, the enhancement for the prior conviction was not plain error under U.S. v. Booker. The Court distinguished Trujillo-Terrazas on the basis that the actual circumstances of the defendant's prior conviction in that case were relatively minor, whereas Mr. Sierra-Castillo's prior conviction was for attempted aggravated assault.

US v. Serrano-Dominguez, 2005 WL 1030443 (10th Cir. 5/4/05): Another affirmance of a pre-Blakely sentence in an aggravated reentry case, and an indication that the Tenth Circuit will look kindly upon those "alternative sentences" imposed in the interregnum between Blakely and Booker. Here, the sentencing court imposed a 33-month sentence and asked the defendant if he would like an alternative sentence imposed. Defense counsel agreed. So, explicitly considering the statutory factors, the court pronounced that it would impose the same sentence regardless of the guidelines. This interchange removed any doubt as to what the district court would do on remand, and thus distinguished this case from Labastida-Segura.

US v. Ambort, 2005 WL 1023345 (10th Cir. 5/3/05): Defendant was convicted of conspiracy to defraud the United States by assisting in the preparation of false tax returns, and 69 counts of aiding and assisting in the preparation of false federal tax returns. The Tenth Circuit affirmed his convictions and sentence. First, some trial issues. The defendant's and co-defendant's testimony about their good faith belief that they were pursuing the proper procedure to attempt to change federal income tax laws was not relevant; the First Amendment did not preclude prosecution for conspiracy to defraud the United States by assisting in the filing of false tax returns; and reparation of tax returns indicating that taxpayers were nonresident aliens, when defendant knew that taxpayers were not, violated statute prohibiting the aiding and assisting in the preparation of false federal tax returns. Then, on to some sentencing issues. The sentencing court's loss determination of $2.6 million under mandatory Sentencing Guidelines did not constitute plain error because the defendant admitted it; and imposition of sentencing increases for leadership or organizer role, for deriving substantial income from the criminal enterprise, and sophisticated user sentencing increase because the evidence overwhelmingly supported each enhancement. Finally, under plain error review, defendant could not point to anything in the record indicating that the court would have liked to impose a different sentence, so there was no evidence the error affected his substantial rights.

US v. Payton, 2005 WL 1030462 (10th Cir. 5/4/05): Defendant pled guilty to conspiracy to possess with intent to distribute meth. Her sentence was enhanced 2 points for possession of firearms, and she was found ineligible for the safety valve because of the possession of the guns. The COA held she was properly found ineligible for safety valve sentencing, based on, among other evidence, five guns were found in close proximity to a large quantity of meth and she testified she bought the shotgun as a Valentine's gift for her co-defendant. Since she then received the mandatory minimum sentence of 120 months, the 2-point enhancement under 2D1.1 had no material affect on her incarceration. Finally, there was no constitutional Booker error because she received the statutory mandatory minimum sentence for the crime to which she pled.

US v. Windrix, 2005 WL 1023398 (10th Cir. 5/3/04): In a case involving conspiracy to manufacture and sell meth, the COA affirmed the convictions but remanded for resentencing pursuant to Booker. The Court upheld various challenged searches. In the first, the Court held that a search warrant affidavit detailing meth-related activity provided probable cause to search the entire hill, including the defendant's mobile home. In the second, an affidavit stating that two officers detected an odor associated with meth cooking provided probable cause for a search. In a third challenged search, the Court found that the search of the defendant's car was supported by a dog's alert, and not by the defendant's four-hour detention at the police station. A search of another house for financial records was supported by probable cause in the affidavit reciting the defendants' indictment on meth charges and an officer's experience that financial records related to such crimes were often kept at their homes. The Court rejected defendants' claims that the conspiracy charged in the indictment varied from the evidence at trial. The trial court did not abuse its discretion in rejecting one defendant's motion to sever. The trial court properly denied one defendant's claim that the jury-wheel selection violated his right to a trial by a fair cross-section of the community as time-barred where it was made only four days before trial. However, defendants' sentences were reversed and remanded for resentencing because the defendants had objected on Apprendi grounds to the sentencing court making findings concerning the quantity of drugs.

US v. Porter, 2005 WL 1023395 (5/3/05): The COA held that with, in the plea agreement, the defendant waived his right to appeal his sentence on ground that it exceeded sentencing guideline range applicable on admitted facts; and the change in law resulting from Booker did not render the waiver of right to appeal sentence unlawful.

US v. Serrano, 2005 WL 1023385 (5/3/05): Defendant was charged with several counts relating to felon-in-possession of a firearm. The Tenth Circuit held that the district court and prosecutor did not interfere with the defendant's right to present a defense by intimidating or coercing two witnesses into invoking their Fifth Amendment rights where the court asked the witnesses if they had discussed their proposed testimony with counsel and, after the court appointed them counsel, they then invoked their rights. The trial court correctly denied defendant's motion to have the court grant use immunity to the witnesses because it did not have authority to do so; only the government could do so. On two Booker claims, the Tenth found that Defendant could not show prejudice from the obstruction of justice enhancement because it was trumped by application of the armed career criminal guideline. Additionally, Defendant's argument that he was entitled to have a jury determine whether his prior felonies were "violent" for application of the ACCA enhancement was rejected.

Thursday, May 05, 2005

Tenth Affirms Denial of Motion to Suppress

U.S. v. Williams, 2005 WL 880893 (10th Cir. 4/18/05) - affirmance of district court denial of motion to suppress. Officer had reasonable, articulable suspicion justifying continued detention of defendant after traffic stop based on totality of the circumstances that included defendant's extreme nervousness, his admission that he exited the interstate to avoid the stop, and the inconsistent stories of defendant and his passengers. Dog alerted after sniff of car's exterior and subsequent search revealed meth and a gun.

Circuit Update April 20, 2005

Several 10th Circuit cases, quite a few with important Booker implications:

U.S. v. Trujillo-Terrazas, 2005 WL 880896 (4/13/2005) - In an aggravated reentry case, the Tenth found that the standards of Gonzalez-Huerta were satisfied. The 10th was struck by the unfairness of adding 16 levels to a reentry defendant's offense level for a seemingly minor arson resulting in $ 35 in damage. To satisfy the third prong of the plain error test, the 10th held a defendant can point to the non-guideline range 3553(a) factors, such as the defendant's history and characteristics and sentence disparity. The 10th found there was a reasonable probability had the d.ct. considered the guidelines advisory, rather than mandatory, it would have imposed a lower sentence because of the relatively trivial nature of the prior conviction, [to avoid punishing the defendant as severely as people with much more serious prior convictions] and the d.ct.'s expression of sympathy for the defendant. The 4th prong was met because the defendant presented a compelling case under the 3553(a) factors perhaps for a "significant departure." "To allow a mismatch between the sentence suggested by a principled application of the post-Booker sentencing framework and the actual sentence given to the defendant would call into question the fairness, integrity and public reputation of judicial proceedings."

The 10th also opined that in a run-of-the-mill case where there is nothing remarkable about the defendant's criminal history, the 4th prong cannot be met even if the d.ct. indicated it would have imposed a lower sentence if it had discretion, because a defendant in identical circumstances would receive a greater sentence from a less sympathetic judge.

U.S. v. Williams, 2005 WL 859427 (4/15/05) - A non-constitutional Booker error warrants plain error reversal in this case as well. Without explaining in much detail, the 10th found the 3rd and 4th prongs of the plain error test were satisfied where the d.ct. expressed disgust at the 210 month sentence it had to impose where the felon defendant possessed a gun because a tablemate passed it to him and he held it for a few seconds.

The defendant lost on all the challenges to his conviction. Even assuming the tip that someone was waving a gun under the restaurant table would be considered anonymous, [the customers making the allegation left before the officers came], there was reasonable suspicion to detain the defendant [leading to discharge of the gun] because when the table's occupants were confronted by the police the defendant fidgeted in his seat, and kept his hands in his pocket despite requests to place them on the table. There was sufficient evidence the defendant knew he possessed the gun, even though only momentarily, because there was evidence he was aware of his tablemate's attempts to push the gun on him. Proof the gun was manufactured in California and the defendant possessed the gun in Kansas proved the interstate commerce nexus. It was not error to refuse to give a "fleeting possession" instruction because there was no evidence the defendant either lacked knowledge he possessed the gun or had a legally justifiable reason to possess it temporarily. It was not error to give a supplemental instruction that if the defendant was conscious his possession could be knowing, despite his intoxication. Intoxication does not negate the general intent required for a felon in possession offense.

U.S. v. Dazey, 2005 WL 846227 (4/13/05) - The first attempt by the 10th to address plain error where a Sixth Amendment violation occurred with an important comment on what evidence is sufficient for a d.ct. to determine a guideline range. The 3rd plain error "reasonable probability" prong can be met in two ways: (1) by showing a jury applying a reasonable doubt standard would not have found the same material facts the judge found by a preponderance; and (2) showing in light of the 3553(a) factors, the court would reasonably impose a sentence outside the guideline range. The prong is applied less rigidly because a constitutional error is involved. The defendant in this case made both showings because the defendant strenuously contested the alleged loss caused by his limited participation in a conspiracy to defraud investors and the d.ct.under a Booker regime might consider the strength of the evidence of the loss in imposing a sentence below the range. The 10th stressed that, unlike other circuit courts, it did not believe simply pointing to the fact that the court enhanced the sentence based on judge-made facts satisfied the third prong. The 4th prong is also more relaxed because the error is constitutional. Under that standard the defendant satisfied the 4th prong because (1) the error was constitutional; (2) the defendant vigorously contested the enhancement; and (3) the judge-found facts substantially increased the sentence [20 level enhancement]. Significantly, the 10th in a footnote states that nothing in the S.Ct.'s Booker decision suggests that the evidentiary basis for a guideline determination [e.g. hearsay evidence allowed and proof by a preponderance] has changed.

Otherwise, the evidence was sufficient to establish each person's knowing participation in the conspiracy, in money laundering and wire fraud. The court did not abuse its discretion when it denied severance of a less culpable defendant from the others. Her defense was not mutually exclusive of the defense of another defendant and the jury should not have had difficulty separating the single crucial question raised by the defendant from the other issues in the case, as evidenced by the jury's acquittal of all but one of the defendants of one or more of the charges. It was harmless to admit notes of meetings as past recollection recorded because of the large amount of independent evidence of what happened at the meetings. It was not plain error for the prosecutor to take evidence out of context and exaggerate its importance. An expert did not usurp the role of the jury because he did not simply tell the jury his conclusion, but explained how he arrived at that conclusion.

U.S. v. Lang, 2005 WL 834669 (4/12/05) - A reversal where the Sixth Amendment objection to enhancements was preserved. The enhancements were for drug quantity, obstructing justice and abuse of trust. The error was not harmless beyond a reasonable doubt. The error was preserved even though the challenge was not raised at the initial sentencing because it was raised after remand for resentencing. The 10th's remand did not limit the d.ct.'s authority to resentence and the Blakely decision constituted a dramatic change in the legal landscape.

U.S. v. Trujillo, 2005 WL 834677 (4/12/05) - It was okay to search the defendant's house pursuant to the authority of his parole conditions even after he was arrested. The government's interest in supervising the parolee and protecting society were still in effect, the defendant's privacy interest was still insignificant and the parole agreement did not terminate upon the arrest. There was reasonable suspicion to search the home based on the following: (1) a failed drug test 4 months earlier; (2) refusal to take a drug test the day before; and (3) information from a detective that the defendant was involved in drug dealing. It was okay that there was no indication what the detective's information was based on because the traditional indicia of reliability for tips play a diminished role when it comes to parole searches. Once there was reason to believe the defendant violated his parole conditions, there was reasonable suspicion to support the search of his home, whether or not there was a sufficient basis to believe there was evidence of drug use in the home.