Interesting Unpublished Decisions

U.S. v. Huffman, 2005 WL 2039190 (8/25/05)(unpub'd) - Despite Congress' unintentional screwing up of subdivision references when it amended a relevant statute, a d.ct. does have the power to impose residence in a community corrections facility as a condition of supervised release. This case also contains an interesting discussion about whether it is improper to delegate to a probation officer the power to shorten the length of a defendant's community corrections term. The 10th did not have to resolve that issue.

U.S. v. Hernandez-Baide, 2005 WL 2050270 (8/26/05)(unpub'd) - The defendant's appeal of a sentence was moot where the defendant had completed her prison term and was serving her supervised release term in Mexico. The 10th did not consider the prospect of obtaining a lower supervised release term enough to defeat mootness because the defendant was not within the d.ct.'s jurisdiction and could not be resentenced without entering the country illegally.

Harmless Error in Admitting Hearsay Fingerprint Testimony

U.S. v. Resendiz-Patino, 2005 WL 2050269 (8/26/05) - A bad case for those trial attorneys who love to rely on the lack of fingerprint analysis on some incriminating item or other. The 10th found harmless any error in admitting hearsay testimony that the battery containing cocaine was not tested for fingerprints because police have been unsuccessful in obtaining prints from items like that. The 10th found that none of the inferences from the lack of fingerprinting would have been particularly helpful, i.e., (1) there were no recoverable prints on the battery; (2) there were recoverable prints that were the defendant's: and (3) there were recoverable prints that did not belong to the defendant. The latter inference would not exclude the defendant from being in league with the person whose prints were on the battery.

With respect to the Booker issue, the d.ct. committed only non-constitutional error because he stipulated at trial to the drug amount. For the usual reasons, the defendant did not meet the 4th prong of the plain error reversal test.

Trial Court Should Have Let Defendants' 404(b) Evidence In

U.S. v. Montelongo, 2005 WL 2033637 (8/24/05) - An excellent case on "reverse 404(b)" and the right to cross-examine. The defendants were taking a truck cross country for a Mr. Gomez. At a border patrol checkpoint, duffle bags of marijuana were found under a mattress in the sleeping portion of the cab. Each defendant contended that Mr. Gomez alone or in concert with the other defendant was responsible for the marijuana. Mr. Gomez testified there was no marijuana in the truck when he gave it to the defendants. The d.ct. refused to allow the defense to cross-examine Mr. Gomez about the fact that a few months before the marijuana was found in this case duffle bags of marijuana were found in the sleeping compartment of a truck owned by Mr. Gomez. The drivers in that case never implicated Mr. Gomez. The 10th ruled that when defendants want to introduce 404(b) evidence, its admissibility is determined by comparing the probative value against considerations such as undue waste of time and confusion of the issues, not prejudice to the government or the witness. In this case, the similarities and temporal proximity of the incidents gave the prior incident probative value that outweighed any contrary considerations. The time factor was minimal and the evidence wouldn't distract the jury but would actually highlight the central issue of the case---namely, which man was responsible for the contraband. Evidence Rule 608(b), relied upon by the d.ct., was inapplicable because the 404(b) evidence was not used to attack Mr. Gomez's character for truthfulness. The d.ct.'s exclusion of the evidence violated the Confrontation Clause because it precluded an entire relevant area of cross-examination. The government could not prove the error was harmless beyond a reasonable doubt. In reaching that conclusion, the 10th rejected the government's claim that the excluded evidence would only have shown Mr. Gomez was in on the deal with the defendants, noting that the government's theory at trial was that Mr. Gomez had nothing to do with the marijuana.

Aberrant Behavior Departure to Probation Affirmed

U.S. v. Maese, 2005 WL 1995580 (8/19/05)(unpub'd) - The 10th upholds an 8 level downward departure for aberrant behavior to get the sentence to probation. The defendant-owner of a trucking company was convicted of misprision of a felony for concealing who likely was responsible for the marijuana found in one of his trucks. However, he otherwise did great community work in Mexico and on the border. The 10th indicates that in some cases, such as aberrant behavior cases, it is very hard to determine the level of departure based on a perfect analogy to the guidelines. The 10th let the departure slide, although it has previously said an 8 level departure is reserved for truly extraordinary cases and it has disapproved of departing a certain amount to get to a particular target sentence. The district judge did a good job of explaining the reasons for the sentence [e.g. "I have never seen anyone in my 10 years as a judge that has done so many good works"], and besides, under Booker the judge would have an easier time to justify the sentence on remand anyway.

IAC Claims in Cross-Burning Case Rejected

U.S. v. Magleby, 2005 WL 1995581 (8/19/05) - Appellate counsel was not ineffective in raising certain challenges in a cross burning case. The possibility of success on appeal was not so great that counsel should have raised the issues when counsel did raise some worthy issues that took the 10th a whole 12 pages in the federal reporter to deal with. The instructions seemed to indicate clearly enough that the defendant could not be convicted of a violation of the victims' civil rights unless actual physical force was threatened. The conspiracy to violate civil rights instructions did erroneously fail to require physical force, but the error was harmless because the jury would have found physical force since it found the defendant guilty on the civil rights charge that required a physical force finding. It was not a First Amendment violation to enhance a sentence under 18 U.S.C. § 844(h)(1) based on the use of fire, even if it was used as a symbol. Threats using fire are particularly threatening and may be punished extra. The fire enhancement of the conspiracy conviction was okay enough so that it wasn't unreasonable for counsel not to raise the issue. The statute requires the fire to be used to commit the felony. The continuing offense of conspiracy did not end before the fire was set, as the defendant claimed.

Post-Verdict Judgment of Acquittal Reversed

U.S. v. Vallejos, 2005 WL 1995586 (8/19/05) - A reversal of a post-verdict grant of a motion for acquittal. A divided 10th held there was sufficient evidence to prove the defendant aided and abetted a carjacking and use of firearm in furtherance of the carjacking in the following circumstances. The defendant's companion tells some women "Watch this." He and the defendant walk up to a truck. The companion sticks a gun in the driver's ribs and tells him to get out. At that time the defendant is a foot behind the companion and slightly to the right. The defendant jumped to the passenger side and shoved the exiting passenger out of the way and at the direction of the companion jumps on the bed as the companion takes off with the truck. The defendant testified he was blind in one eye and couldn't see very well in the other and didn't see that his companion had a gun. The 10th questioned the d.ct.'s application of the principle that the defendant had to know "to a practical certainty" that the companion had a gun. The 10th indicated it thought it was enough that the defendant "shared some knowledge" of the principle's intent. In any event, the 10th believed there was sufficient evidence the defendant saw the gun based on the companion's command to "watch this," the defendant's "clear line of vision," and his subsequent participation in the carjacking. Dissenting Judge McKay pointed out that none of the many other witnesses at the scene saw the gun and the defendant's receipt of disability payments established his vision problems.

4th Amendment Right to Pharmacy Records Recognized

Douglas v. Dobbs, 2005 WL 1953501 (8/16/05) - In a civil rights case, the 10th rules that a person has a Fourth Amendment right to privacy in local pharmacy prescription records. There is a constitutional right to privacy protecting an individual from the disclosure of information concerning a person's health. The 10th did not decide what procedure law enforcement had to follow to obtain the information because the officers involved had settled out and the remaining prosecutor defendant did not violate any right by simply authorizing the officers to seek a warrant.

Ex Post Facto, Due Process Arguments Rejected in Pre-Blakely/Pre-Booker Sentencing Case

U.S. v. Rines, 2005 WL 1953505 (8/16/05) - Without much discussion, the 10th rejected the notion that due process or ex post facto principles prohibited increasing a sentence above the maximum allowed by the defendant's admissions or the jury verdict for offenses committed before Blakely and/or Booker was decided [on the grounds that the enhancements were unforeseeable at the time of the offense]. The S.Ct. in Booker ordered that the new advisory regime (that allows enhancements based on a judicial finding by a preponderance) be applied to all nonfinal cases. The S.Ct. wouldn't order courts to violate the Constitution, the 10th reasoned. In addition, when the defendant committed the offense he was on notice that he could be sentenced within the guidelines as enhanced by judicial findings, as he was.

The 10th also ruled that a d.ct. does not have to "march through" all the 3553(a) sentencing factors when imposing a sentence. It was enough that the d.ct. looked through the record in its entirety, was familiar with the facts of the case and heard several different arguments. "We will not make the useless gesture of remanding for reconsideration when the defendant was aware at sentencing that all relevant factors would be considered by the d.ct."

Sex Offender Enhancements Addressed

U.S. v. McCutcheon, 2005 WL 1972569 (8/17/05) - An important case regarding sex offender enhancements. The 10th approved an enhancement for a child porn defendant to a 10 year mandatory minimum under 18 U.S.C. 2252((b)(2) because of a prior sex offense conviction involving a minor. The defendant had previously been convicted of sexual battery in Kansas. The elements of sexual battery did not require that the victim be a minor. Nonetheless, the 10th said it was okay to enhance as though the conviction was for sexual abuse of a minor because the documents the d.ct. reviewed made it clear the victim was actually a minor. The 10th refused to apply the categorical approach under Taylor that is used for Armed Career Criminal Act purposes, for example. The Taylor approach is not universally applicable to all sentencing enhancements. The wording of § 2252(b)(2) indicates the sentencing court may look beyond the elements of the prior offense to determine if the enhancement applies. The statute says the conviction must "relate to" sexual conduct involving a minor, not "be" for such conduct. Even if the d.ct.'s consideration of a presentence report in the prior case, [a document not specifically noted as okay to review in Shepard], violated the defendant's right to a jury, it was harmless beyond a reasonable doubt because the defendant did not challenge the truthfulness of the report.

Permissive Inference Instruction in Drug Case Approved

U.S. v. Badilla, --- F.3d ----, 2005 WL 1972616 (10th Cir. August 17, 2005): The Court affirms its prior decision in this Booker remand case. Defendant had been convicted of narcotics trafficking, and was sentenced to 78 months in prison and four years supervised release, and he appealed. The Court initially affirmed. U.S. v. Badilla, 383 F.3d 1137. The Supreme Court vacated and remanded for further consideration, in light of United States v. Booker. On remand, the Court held that: (1) a jury instruction that stated the jury could infer, but was not required to infer, that a driver in sole possession of the vehicle in which a large quantity of marijuana was found had knowledge of the drugs, did not violate the defendant's Sixth Amendment right to have jury determine any fact that would increase defendant's sentence, and (2) the imposition of an obstruction of justice sentencing increase under mandatory Sentencing Guidelines was not plainly erroneous because the jury also would have found that the defendant lied on the stand when he denied knowledge.

Error to Consider Prior An Agg Felony, But Harmless

U.S. v. Gonzalez-Coronado, -- F.3d --, 2005 WL 1941631 (8/15/05) - The district court erred in treating Mr. Gonzalez's Kansas felony conviction as an aggravated felony under 8 U.S.C. § 1326(b)(2), given the sentence of probation imposed by the state court, but the COA decides the error was harmless because he got a 37-month sentence when he could have properly received up to ten years. The plain error standard was not met for the non-constitutional Booker error of treating the GLs as mandatory.

Plain Error Found in Detention of Cuban Contrary to Supreme Court Precedent

Morales-Fernandez v. INS, 2005 WL 1871118 (8/9/05) - In joining a circuit split on the issue, the 10th holds that the failure to object to a magistrate's proposed findings does not waive the right to appeal where plain error has been committed. The 10th implied this same standard would apply to appeal waivers. Plain error was committed because the d.ct. upheld detention of a Cuban when clear S.Ct. precedent required his release. See Clark v. Martinez, 125 S.Ct. 716 (2005)("Once removal is no longer reasonably foreseeable [because Cuba will not accept the return of the alien] [presumptively 6 months] continued detention is no longer authorized.").

Pre-Booker Upward Departure OK'd

U.S. v. Martinez, 2005 WL 1926642 (8/12/05) - Applying pre-Booker standards, a 4 level upward departure on the ground that the grouping guidelines left unpunished 4 of the defendant's 10 bank robberies was a reasonable amount of departure. It was appropriate to assign two criminal history points to a prior conviction for which the defendant didn't actually serve time. What matters is what imprisonment was imposed. Any preserved non-constitutional Booker error was harmless because the district court imposed a discretionary upward departure, making it unlikely it would impose a different sentence upon remand.

Marriage Fraud Conviction Affirmed

The Tenth upheld the defendant's conviction for marriage fraud in violation of 8 USC 1325(c). The court found their was sufficient evidence to conclude that the defendant, a Pakistani man, intended to enter into a sham marriage to evade the immigration laws based on evidence that another person recruited the American woman to be his wife; they married just after meeting; payments were made; the couple lied about living together; and the paperwork that ostensibly showed they lived together was generated after the investigation started. The defendant also objected to the jury instruction, which neglected to make clear that the defendant had to be one who intended to evade the immigration laws, but the Tenth -- although agreeing the instruction could have been clearer -- as a whole were not erroroneous. US v. Islam, 2005 WL 1871124 (10th Cir. August 09, 2005)

Reentry Defendant Failed to Meet Prerequisites of 8 U.S.C. 1326(d) for Collateral Attack on Prior Removal

U.S. v. Rivera-Nevarez, 2005 WL 1847344 (8/5/05) - An important, depressing reentry case. The permanent resident alien defendant was removed in 1999 on the grounds that his DUI conviction was an aggravated felony. He challenged the reentry after deportation after a felony charge on the grounds that his deportation was illegal, since United States v. Lucio-Lucio (10th Cir. 2003), and later the Leocal v. Ashcroft (U.S. 2004) establish DUI is not an aggravated felony for removal purposes. The d.ct. ruled Lucio-Lucio did not apply retroactively. The defendant entered a conditional plea. The 10th ruled that obviously Lucio-Lucio and Leocal applied retroactively because they interpreted a statute that has always meant what the S.Ct. said it meant. Nonetheless, the 10th concluded that, even assuming the removal was fundamentally unfair, the defendant did not meet one of the other prerequisites for collaterally challenging a prior deportation under 8 U.S.C. § 1326(d), i.e., that the prior removal proceedings deprived the alien of the opportunity for judicial review. The case law was ambiguous enough about whether appeal from removal for an aggravated felony conviction was available and whether DUI was an aggravated felony so that it wouldn't have been futile to appeal. Also, the defendant did not show that the notice of his right to appeal or his appeal waiver was inadequate.

The 10th rejected dissenting Judge Lucero's interesting contention that the 10th should remand to vacate the plea because the defendant prevailed on his challenge to the d.ct.'s retroactivity decision. According to Judge Lucero, the defendant's plea was conditioned on whether the d.ct.'s order was reversed, not on whether he would ultimately obtain a dismissal of the indictment. Judge Lucero worried that otherwise the plea may not have been knowing. The majority held, among other things, that the plea was conditioned on the ultimate success of the motion to dismiss not on whether the d.ct.'s particular rationale was correct.

District Court Erred in Determining Number of Victims of Mail Theft

U.S. v. Leach, --- F.3d ----, 2005 WL 1820046 (10th Cir. August 3, 2005): Defendant pled guilty to theft of mail by a postal employee, and was sentenced to 37 months in prison after she was found to have stolen more than 45 pieces of mail addressed to Voice of the Martyrs (VOM), a nonprofit organization that assists Christians around the world who are being persecuted for their faith, and other charitable organizations. After Defendant pled guilty but before her sentencing, Blakely v. Washington was decided. The district court rejected the defendant's argument that she had waived only her right to have a jury determine guilt or innocence and determined that it could make evidentiary findings at sentencing. Accordingly, following an evidentiary hearing, the district court made two disputed findings of fact: 1) that the amount of loss was $134,571.34 and 2) that the number of victims was more than 50. In addition to challenging these findings on appeal, the defendant contended that the court engaged in unconstitutional fact-finding in violation of Blakely and Booker. The COA first rejected the Booker/Blakely argument on the grounds that defendant had waived her right to a jury trial in her plea agreement and had declined to withdraw her plea after being given the opportunity to do so. The Court then addressed the loss amount, and affirmed the district court's loss finding. VOM had kept a record of every donor who reported that a check he or she had sent had not been cashed. That amount totaled $253,555.42. However, the court deducted from that amount replacement checks to obtain the total of $134,571.34. The COA concluded that the district did not clearly err in this calculation of loss. On the issue of number of victims, though, the COA concluded that the district court erred in finding that there were more than 50 victims and enhancing the defendant's offense level on that basis. The district court had concluded that the over 200 donors to VOM who had reported uncashed checks were victims.The COA noted that when defendant was arrested, she had in her possession mail addressed to 8 different persons or addressees. Moreover, the district court's calculation of loss focused only VOM's loss, and not on any loss or "replacement costs" incurred by donors who sent in additional checks (the 37-cents each plus a five-cent envelope?). Accordingly, remand for resentencing was required.

New Sentencing Ordered in Reentry Case

U.S. v. Najera-Morales, 2005 WL 1766371 (7/27/05)(unpub'd) - Helpful language for reentry sentencing. While reversing a sentence for plain non-constitutional Booker error, the court noted that the defendant's persistent attempts, despite his aggravated felon status, to obtain permanent residence through his citizen wife by openly approaching INS, paying high fees and remaining in contact with INS merited special consideration warranting a sentence below the guideline range.

Capital Sentence Affirmed; IAC Claims Rejected

Boltz v. Mullin, 2005 WL 1766379 (7/27/05) - Another death sentence in Oklahoma affirmed in a habeas case. For the most part the alleged ineffective assistance of counsel was not prejudicial because of the substantial evidence the defendant killed the son of his estranged wife with premeditation, given his threats that he would do what he did, his bragging about killing others, the defendant's admissions and the heinous nature of the decapitation. Other attorney conduct was reasonable strategy given the weakness of the evidence the defendant believed counsel should have presented. Evidence of an unadjudicated crime may be introduced in the sentencing phase even if the evidence is not all that reliable. The jury could consider a nonviolent crime such as a burglary, along with other evidence of violence, to prove the defendant was a future risk to society. Callousness is not necessarily an improper basis for the death penalty because it's not clearly established every first degree murder is callous. There was sufficient evidence the defendant was a continuing threat to society. Evidence of the defendant's clear intent to kill supported the state court's finding that there was insufficient evidence to justify a heat of passion lesser included instruction, although there was evidence the defendant was angry at his wife for leaving him.

Involuntary Medication Under Sells Upheld

U.S. v. Bradley, 2005 WL 1785303 (7/28/05) - The 10th held that the standard of proof is clear and convincing for the facts needed to justify an order to involuntarily administer antipsychotic medication to render a defendant competent. The 10th reviews those facts for clear error and de novo the determination of the importance of the government's interests and whether the involuntary administration is necessary to significantly further those interests. The 10th found all the Sell factors met and affirmed the involuntary administration order. The drugs were not too medically risky, they would substantially aid the defendant's return to competency, the d.ct. unsuccessfully tried the less intrusive method of ordering the defendant to medicate himself, the government had an interest in imposing punishment up to 50 years and the defendant could not be involuntarily committed because he was not dangerous.

Community-Caretaking Exception to Warrant Req't Justified Search

U.S. v. Garner, 2005 WL 1766377 (7/27/05) - The 10th holds the community caretaking exception to the warrant and probable cause requirements does not only apply to automobile searches, as the 10th had previously stated in other cases. The officer properly acted in his community caretaking function when he directed the defendant to allow examination by fire department personnel. An anonymous caller reported that a man had been sitting unconscious in a field for several hours, the officer found the defendant lying down in the field and, as he approached, the defendant walked away. The officer had reasonable grounds to believe the defendant required medical assistance and to investigate a possible public intoxication offense. The 10th distinguished cases, such as Florida v. J.L., 529 U.S. 266 (2000), where an anonymous tip was insufficient to justify a detention. Unlike in those cases, in this case, the tip didn't suggest someone was engaging in hidden criminal activity. When the officers found the defendant in the field they confirmed the tipster's key information. The officer had reasonable suspicion to continue the defendant's detention after the fire department personnel completed their medical exam and found the defendant to be okay. The defendant was "really nervous" and moved his hands in and out of his pockets. The officer reasonably believed the defendant might still be intoxicated or be a danger to himself or others and that he violated the public intoxication statute. Asking for ID, [leading to knowledge of outstanding warrants which lead to discovery of a handgun] was within the proper scope of the detention.

Gov't Can Argue Appeal Waiver in Brief

U.S. v. Clayton, 2005 WL 1799819 (8/1/05) - The government does not waive the right to enforcement of the appeal waiver by failing to file a pre-briefing motion for enforcement. If the government raises the issue in its brief the 10th will enforce the appeal waiver. The pre-briefing motion was only suggested by the 10th en banc in Hahn to help protect the government's interest in obtaining the full benefit from the appeal waiver. If it chooses to wait until the briefing, so be it. The combo of Clark and Clayton means it would not be in our clients' best interests to take note of appeal waivers in our opening brief if the government has yet to file a motion to enforce the waiver. The defendant's best chance to avoid the waiver is to hope the government neglects to raise it in its brief.

Success with a Booker Claim; Gov't Waived Appeal-Waiver Argument

U.S. v. Clark, 2005 WL 1799806 (7/29/05) - A split decision plain error reversal with a first impression constitutional Booker ruling. The majority held that in determining the maximum sentence that may not constitutionally be exceeded by virtue of a judicial finding the sure-thing acceptance of responsibility downward adjustment ("AR") must be applied first. For example, in this case, before the AR was applied, the defendant's guideline range was 110-137 months based on the amount of drugs the defendant admitted responsibility for. After the AR, the range was 84-105 months. The defendant received a 120 month sentence due to enhancements for extra drugs and a gun involved in incidents a year and 3 years after the offense of conviction. The 10th rejected the government's and dissent's claim that the maximum was the 137 months at the top end of the unenhanced guideline range without the AR. The majority reasoned that the AR was required to be credited in this case where the government stipulated to it and the defendant pleaded guilty and did everything expected to get the credit. So, the Booker maximum was the 105 months at the top end of the AR-adjusted unenhanced range. Hence, the 120 month sentence resulting from the judge's relevant conduct determinations violated the Sixth Amendment. That error warranted reversal because (1) there was a reasonable probability a jury would not have found beyond a reasonable doubt that defendant's subsequent drug-related conduct was part of the same course of conduct as the offense of conviction, given the absence of temporal proximity and regularity; and (2) the error seriously affected the fairness, integrity and public reputation of judicial proceedings, in light of the defendant's forceful objection to the enhancement, the weakness of the evidence supporting the enhancement, the sentence at the bottom of the range, the defendant's argument that she had serious medical problems and was involved in drugs due to her addiction, and the substantial increase in sentence due to the enhancement. The 10th stressed that the 4th prong of the plain error reversal standard is expressed in the disjunctive so that reversal is warranted if the error causes unfairness, or lack of integrity or calls into question the public reputation of judicial proceedings.

The majority held that the defendant's appeal waiver did not prevent an appeal because the government had not raised the issue of the waiver in a pre-briefing motion for enforcement of the waiver or in the briefs. The dissent, Judge O'Brien, felt the waiver should be enforced because Booker didn't come up until after the briefing and there was no supplemental briefing. This suggests in the usual case even Judge O'Brien would feel an appeal waiver would not have to be enforced if the government didn't raise the waiver in its brief.

Error in Criminal History Calc Held Harmless

U.S. v. Wilson, 2005 WL 1693999 (7/21/05) - Any error in the criminal history calculation was harmless since on remand the d.ct. had the authority to count the firearm offense as relevant conduct, rather than in the criminal history, as it did, resulting in the defendant's guideline range being even higher than it was. Given the speculative nature of the concerns expressed by the defendant, the d.ct. did not abuse its discretion in rejecting the defendant's request to defer paying his restitution until after he was released from prison. No constitutional Booker error occurred because the guideline calculation was based solely on the defendant's admissions. The non-constitutional Booker error did not warrant plain error reversal, where the d.ct. indicated it would have imposed a mid-gudeline-range sentence except for its desire to take account of pre-information confinement.

Court Order Authorizing Involuntary Meds Overturned

U.S. v. Morrison, 2005 WL 1672224 (7/19/05) - The 10th overturns a court order authorizing involuntary administration of psychotropic medication to render the defendant competent. The d.ct. erred by failing to first evaluate whether it is appropriate to medicate the defendant to ensure the defendant's safety or the safety of others under Washington v. Harper, 494 U.S. 210 (1990), before applying the 4-part test established in Sell v. U.S., 539 U.S. 169 (2003), regarding using medication to make a defendant competent. Sell required the d.ct. to apply the tests in that order. The Harper analysis is a more straightforward analysis and will throw light on the Sell analysis, even if the Harper test doesn't justify forced medication. The 10th strongly hinted perhaps the government's interest in pursuing the prosecution was low, since the defendant had already spent about as much time as he would spend incarcerated as he would have to serve if convicted, and he appeared to have a strong insanity defense to the charge of sending threatening letters.

Presence of Guns Alone Does Not Justify No-Knock Entry

U.S. v. Nielsen, 2005 WL 1694033 (7/21/05) - The 10th affirms a suppression grant on knock and announce grounds. The defendant's involvement with firearms was not enough to justify a "no-knock" exemption. The officers did not have reasonable suspicion to believe that knocking and announcing would be dangerous or futile where: an anonymous tipster said the defendant had an automatic weapon and narcotics in his garage; in 1999 the police had searched the defendant's home and found five weapons, including a loaded gun on top of a laundry basket, and marijuana, resulting in charges of felon in possession and marijuana possession; at the time of the 1999 search, the defendant did not resist, threaten violence or try to conceal evidence when the police entered; and recently the officers found marijuana seeds and cloth patches used to clean firearms in the defendant's garbage. Evidence that a firearm was present by itself "does not demonstrate an increased risk beyond that normally faced by officers, especially where the firearm was supposed to be in the garage and there was no evidence the defendant had interior access to the garage." Particularly notable was the lack of evidence the defendant was distributing narcotics or had engaged in any prior violent conduct. And, the good faith exception did not apply because the warrant affidavit was so facially deficient. The officers should have known the mere presence of firearms is insufficient to justify a no-knock entry.

Mere Presence Not Enough to Sustain Conviction

U.S. v. Summers, 2005 WL 1694031 (7/21/05) - In a Judge Browning case, a reversal for insufficiency of the evidence and the first substantive 10th application of Crawford with a good holding for future cases but of no help to the co-defendant. Following an exegesis on what the improper "piling inference upon inference" means, the 10th holds the government failed to prove the defendant's participation in a bank robbery where the only evidence against the defendant was his presence with the other bank robbers in an apartment where the proceeds were sorted and in a car fleeing the police some time after the robbery. Mere presence, proximity and association is not enough.

The 10th found violative of Crawford the admission of a co-defendant's statement to the police after the officers stopped the fleeing car and arrested the occupants: "How did you guys find us so fast?" First, the 10th found the confrontation clause argument was preserved by counsel's repeated complaints that he couldn't cross-examine the declarant, even though counsel did not explicitly say: "Confrontation Clause." [The words "Confrontation Clause" should immediately follow any hearsay objection to make sure the constitutional issue is preserved!!!]. Second, the question was an assertion the government was attempting to prove the truth of because the declarant's intent was to make an assertion about guilt and wonderment at the ability of the police to apprehend the robbers so quickly, and not exclusively to learn about modern methods of law enforcement. Finally, the statement was testimonial and thus covered by Crawford. A reasonable person in the declarant's position would objectively foresee that his statement might be used in the investigation or prosecution of a crime. Crawford is not limited to formal interrogations. The statement was "loosely akin" to a confession. But, the admission error was harmless beyond a reasonable doubt, given the strength of the government's evidence and the minimal use of the statement by the government.

Tenth Reverses Habeas Relief Granted by District Court

The Tenth reverses OK district court's grant of habeas relief--a new trial--in Richie v. Mullin, -- F.3d --, 2005 WL 1714327 (10th Cir. 7/25/05). The court's decision, authored by Kelly, concludes that defense counsel was not ineffective in cross-examining a state medical examiner. The theory of death was in dispute--whether the vic, bound and secured to a closet clothes rod, was left to die while restrained (defense theory) or lifted by her ankles while bound and strangled (state theory). If she was left to die, the case would not have been death penalty eligible. Counsel interviewed the medical examiner before trial and concluded he supported the defense theory. His trial testimony supported the state's theory. The COA decides the district court erred in finding that the medical examiner provided the only evidence supporting the state's theory and points out that the state only managed to show that the medical evidence was consistent with its theory. Counsel's cross-examination represented a reasonable tactical choice, as did the decision not to call another expert to support the defense theory. Hartz concurs, offering more reasons why counsel's performance was reasonable, and McConnell dissents, separately criticizing both the court's decision and the Hartz concurrence. McConnell points out that the medical examiner would have testified, if asked, that there was no medical evidence supporting the state's theory that the vic was deliberately suspended and that she could have died by passing out and falling into the strap, which supported the defense theory. Counsel's failure to conduct a proper cross-examination eliciting this information constituted IAC.