Downward Departure Reversed Based on Court's Failure to Give Notice

U.S. v. Santos Munroy, 2005 WL 1406169 (6/16/05)(unpub'd) - A downward departure was reversed because the court did not give sufficient notice of its intent to depart downward. After Booker, the departure notice rules as explained in Burns v. U.S., 501 U.S. 129 (1991), still apply.

Drug Conviction Reversed Because of 404(b) Error

U.S. v. McNeil, 2005 WL 1415567 (6/17/05)(unpub'd) - A rare conviction reversal!!! In a PCP case, the d.ct. allowed for 404(b) purposes the introduction of the defendant's prior cocaine distribution conviction without any indication that the facts were similar to the facts in the instant case. The 10th relied on a 1972 en banc 10th Circuit case, U.S. v. Burkhart, 458 F.2d 201, to hold that the prior conviction was inadmissible and highly prejudicial. The 10th quoted Burkhart; "Once prior convictions are introduced the trial is, for all practical purposes, completed and the guilty outcome follows as a mere formality." You don't hear that every day.

Convictions in Child Porn Cases Upheld; One Remanded for Booker Error

U.S. v. Garcia, 2005 WL 1400394 (6/15/05) - The attempt to obtain porn photos of the two make-believe minor daughters of the undercover agent was relevant conduct to the defendant's charged offense of sending child porn to the undercover agent, thus justifying an enhancement for enticing a minor to engage in sexually explicit conduct to make photos. It was all part of a common scheme; the photos were sent as part of the plan to entice the minors. The enhancement is applicable even though the defendant was not going to take the photos himself, but rather he was trying to get the pseudo-mom to take the photos. The agent's actions were not outrageous misconduct . It was the defendant who suggested the sexual abuse possibilities. It was okay to have one of the pretend daughters be 7 years old even if it increased the offense level. The government is allowed to "bait and hook" even if the "bait", if taken, leads to the highest level enhancement. The case is remanded because the government conceded the court committed objected-to constitutional Booker error.

U.S. v. Thomas, 2005 WL 1395114 (6/14/05) - Another case involving the same undercover Wyoming operation as in Garcia. That 18 U.S.C. § 2422(b) only requires a defendant to entice a minor to engage in a sexual act, rather than to intend to commit the underlying sexual act, does not render the statute unconstitutionally overbroad or void for vagueness. The 10th was not impressed with the defendant's suggestion that it would be an aiding and abetting violation of 2242(b) for a parent to provide birth control advice in an e-mail to a minor daughter who was having a sexual affair with an older boyfriend. It was not an abuse of discretion to admit evidence that the defendant traveled near where the imaginary girl was living after arranging a meeting there for a sexual liaison. While intent to commit a sexual act was not required, the defendant's conduct demonstrated his enticement intent. There was sufficient evidence of the defendant's offense based on a transcript of his e-mail conversation indicating he took the initiative sex-wise and knew the imaginary girl was 12. There was no reasonable presumption of vindictiveness when the prosecution added a second enticement charge after the jury hung on the first trial with respect to one charge. The hung jury was not the result of the defendant exercising a specific right and, thus, the new charge could not be in retaliation for exercising a right. And, the prosecutor justified the charge adding because the first trial jurors told him the uncharged incident was more egregious than the charged one and the prosecutor claimed he didn't know the additional charge would increase the defendant's sentence.

As far as Booker plain error goes, this was a "close" but no cigar case. While the district court did note the "harsh" effect of the guidelines, the evidence supported the convictions, the sentence was not that much higher than the mandatory minimum and the district court considered the history and characteristics of the defendant and "still" imposed a 70 month sentence, which was the low end of the applicable range.

Warrant to Search Safe at Defendant's Workplace Upheld

U.S. v. Soderstrand, 2005 WL 1406183 (6/16/05) - The warrant to search a safe at the professor defendant's workplace was supported by probable cause where a clerical employee, to satisfy her curiosity, opened the safe and discovered pictures of naked children and told the police. That the warrant affidavit didn't state the minors in the photos were engaged in sexually explicit conduct---the requirement of the child porn statute---didn't matter. It was enough that child porn could reasonably be expected to be found in the safe. The state university clerical employee was not a state actor because she acted on her own outside her duties. Even if the affidavit was insufficient, the search is saved by the officers' good faith. They did everything they were supposed to do: first seeking a warrant, rather than searching. The constitutional plain error under Booker did not warrant reversal because the district court exercised its discretion to sentence near the top of the guideline range.

Defendant Can Waive Booker Appeal

U.S. v. Maldonado, 2005 WL 1395112 (6/14/05) - The 10th reaffirms that a defendant can waive the chance to appeal a Booker issue. Nonetheless, to determine if the waiver is valid, the 10th does go through the plain error analysis for Booker error and decides the 4th prong of the analysis is not met even though the district court committed constitutional error, rejected some enhancements and sentenced at the low end of the range.

Booker Does Not Apply Retroactively to 2255 Movants

U.S. v. Bellamy, 2005 WL 1406176 (6/16/05) - The 10th decides Booker does not apply retroactively to 2255 movants, based on the same reasoning it used to hold in U.S. v. Price, 400 F.3d 844 (2005), that Blakely does not apply retroactively. Also, the defendant failed to establish counsel acted unreasonably because correspondence from counsel indicated counsel properly advised about the sentencing possibilities and gave the defendant a chance to contest the PSR facts and he didn't.

Officer and Social Worker "Seized" Teen in High School Counselor's Office

Jones v. Hunt, 2005 WL 1395095 (6/14/05) - In the eyes of a reasonable, emotionally vulnerable 16 year-old plaintiff, she was seized for 4th Amendment purposes when she was confronted by a police officer and a social worker while confined in a Bernalillo High School counselor's office to which she had been sent by a school official. For at least an hour, the officials, who had the authority to determine her custodial care, repeatedly threatened that if she did not agree to live with her father they would arrest her and follow her for two years making her life "hell," and the plaintiff was crying and obviously emotionally fragile and distraught. The plaintiff reasonably believed she would be arrested if she did not agree to go home with her father. The probable cause standard, rather than the reasonable suspicion standard, applied because the officials were not school officials preserving order on school property. In any event, the officials did not meet any reasonable standard because they were acting in contradiction to a court order that required the custody to be with the plaintiff's mother.

Conviction and Sentence in Drug Case Affirmed

U.S. v. Lauder, 2005 WL 1349974 (6/8/05) - There was sufficient evidence of a nexus between the drugs found in a house and the defendant who was staying there. The defendant had access to the drugs and his clothing and fingerprints tied him to the drugs. Testimonial reference to the defendant 's exercise of his right to remain silent was improper but harmless beyond a reasonable doubt. The government did not use the testimony as substantive evidence of guilt, the prosecution did not prompt the testimony, there was only one reference, the judge gave a curative instruction and the evidence of guilt was overwhelming. The Live-Scan fingerprint [taken by a digital camera, instead of using ink] was properly authenticated as the defendant's, even though the witness could not describe how the process worked. Daubert was not relevant to the authentication issue; how the scanner worked did not have to be explained. The court properly determined the amount of drugs involved. The constitutional Booker plain error did not merit reversal, even though the violation resulted in a substantial sentence increase, because the court sentenced above the bottom of the guideline range, uncontested evidence supported the enhancements and the judge's statements indicated the judge would impose the same sentence on remand.

Sentence in stolen credit scheme affirmed

U.S. v. Lin, 2005 WL 1332337 (6/7/05) - It was okay to take into account the aggregate credit limit of the stolen credit cards to assess the amount of loss for offense level purposes. That some of the cards had been abandoned was not helpful to the defense because the violated statute punished a "scheme," and not just the taking of the cards. Evidence the defendants tried to iron silver foil on credit cards to promote their acceptability supported the enhancement under § 2B1.1(b)(9)(B) for producing an unauthorized access device. It was not enough for reversal for constitutional plain error under Booker that in reaching the enhancement factual findings the judge made inferences upon which reasonable minds could differ.

Officer safety justifies truck search

U.S. v. Dennison, 2005 WL 1349966 (6/8/05) - The 10th refused to validate a search of a truck as incident to an arrest because the d.ct. did not make a finding as to the location of the arrested co-defendant at the time of the search. The search would be invalid on incident to arrest grounds if the arrestee had been removed from the scene. But, officer safety justified a search of the passenger compartment of the truck when the defendant remained by the truck because: (1) officers had reason to believe there were weapons in the truck, since the co-defendant had a number of arrest warrants, including for a weapons violation and "importantly" admitted involvement in a domestic dispute earlier in the evening; (2) unlike in the Ybarra case where all bar patrons were illegally searched because of a warrant for one of the patrons, officers could infer a "common enterprise" between the defendant and the co-defendant and that the defendant might want to hide evidence of wrongdoing; and (3) the events occurred at night in a high-crime area and officers couldn't tell if the defendant had weapons within his reach. It didn't matter that the defendant was handcuffed at the rear of the truck [he could have escaped] or that the officers did not act as though they were subjectively in fear [only objective factors matter].

Erroneous Voluntary Manslaughter Instruction Results in Reversal of Conviction

U.S. v. Serawop, -- F.3d --, 2005 WL 1324996 (10th Cir. 6/6/05) - Voluntary manslaughter conviction reversed due to failure to instruct the jury on a mental state element for the offense other than "in the heat of passion." To convict of voluntary manslaughter under 18 U.S.C. § 1112, the jury must be instructed that the defendant acted in the heat of passion with either (1) a general intent to kill, i.e., that the defendant was aware that the result was practically certain to follow from his conduct regardless of his desire to achieve that result; (2) intent to do serious bodily injury; or (3) depraved heart recklessness. The defendant here was charged with second degree murder after the death of his three-month-old daughter in Indian country and convicted of voluntary manslaughter.

Relief granted in 2255

U.S. v. Holder, -- F.3d --, 2005 WL 1324949 (10th Cir. 6/6/05) - Petitioner overcame presumption of sound trial strategy in his § 2255 re: counsel's failure to call a witness whose testimony could have been critically important in a federal murder trial in Okla. Petitioner was therefore entitled to an evidentiary hearing. The COA noted that the district court had relied on a 10th Cir. holding, later rejected by the Supreme Court, that there can be no IAC claim when the petitioner was represented at trial by retained counsel.

No Booker error in meth case

U.S. v. Dalton, 2005 WL 1283850 (6/1/05) - The d.ct.'s determination of the amount of meth to be counted for offense level purposes was not clearly erroneous given the vague testimony of a co-defendant, the possession of meth-making ingredients, a ledger indicating how much drug money was owed the defendant and the defendant's letter setting forth his meth recipe. The 4th plain error prong for constitutional error was not met because the d.ct. sentenced the defendant at the highest end of the guideline range [so it's unlikely the d.ct. would sentence the defendant to a lower sentence under an advisory scheme], there was evidence to support the drug amount calculation and the d.ct. indicated it considered the 3553(a) factors when it imposed sentence.

Reasonable to run super'd release sent. consecutively

U.S. v. Contreras-Martinez, 2005 WL 1283782 (6/1/05) - The d.ct. reasonably imposed a sentence for a supervised release violation [for original reentry offense] consecutively to the underlying offense [another reentry]. U.S.S.G. § 5G1.3(b), which suggests concurrent sentence for an offense taken into account in the instant crime's offense level did not apply where the supervised release violation involved a separate offense. Indeed, under note 3(c) of § 5G1.3(c) and § 7B1.3(f) consecutive sentences are more appropriate. Most importantly for future appeals of post-Booker sentences, the 10th said review of such sentences would use the same relaxed "reasonableness" standard that has been used for review of supervised release violation sentences. Consequently, the judge acted reasonably here by listening to counsel's arguments and the evidence, imposing a sentence consistent with the guidelines and saying the sentence served the punishment and deterrence policies of 3553(a). No "magic words" are required.

Administrative search of salvage yard ok'd

U.S. v. Johnson, 2005 WL 1283833 (6/1/05) - A reversal of the granting of a motion to suppress. The officers acted reasonably pursuant to a statute allowing an administrative search of salvage yards, [a closely regulated business], because they acted based on "vague" suspicions of criminal activity, not "direct criminal" suspicions. There is nothing unconstitutional about embarking on an administrative inspection as long as the degree of suspicion is that low. The search of the defendant's toolbox which could contain VIN plates and that was next to motorcycles without VIN plates was within the scope of the inspection statute. The officers relied in good faith on the constitutionality of the statute, which had been upheld by the Oklahoma courts. The d.ct. was wrong to rely on the subjective motives of the officers to find something illegal regarding the defendant. Where officers are engaged in a proper administrative search, their subjective motivations are irrelevant.