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. ยง 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.
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. ยง 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.
posted by Anonymous at 10:04 AM
0 Comments:
Post a Comment
<< Home