Securities Act Conviction Upheld; Computer Search OK'd; Various Booker Issues Addressed

U.S. v. Wenger, 2005 WL 2767182 (10th Cir. Oct 26, 2005)
In securities fraud conviction 10th rejects claim that D’s radio show and newsletter wherein he touted stocks in which he had an interest, in violation of the Securities Act disclosure requirement, were protected non-commercial speech under 1st Amend. 10th applied commercial speech analysis and found no impermissible burden; Securities Act provision not unconstitutionally vague. Opinion includes 404(b) analysis.

U.S. v. Brooks, 2005 WL 2767185 (10th Cir. Oct 26, 2005)
Issue I: Search of computer for kid porn not beyond scope of consent. Cops had warrant for search of computer, asked D for consent to search for images using automatic search disk. Disk did not work, and they conducted a manual search for images. Though a different method of search than what cops told D they would use, manual search did just what auto search would have done, and cops searched only for images. 10th distinguished Elliot and stated D could not supply any reason for why the manual search was more invasive than the auto search. Issue 2:Police obtained another warrant after this for a lab search of computer. 10th held that though warrant could have been better worded, it was sufficiently particular, not over-broad, distinguishing Campos and Carey. A must-read for a computer search issue.

U.S. v. Muessig, 2005 WL 2767188 (10th Cir. Oct 26, 2005)
It seems there is a lot of targeting of Vietnamese convenience store owners on psuedoephedrine (PE) sales. In this case, big targeting of 2 stores, wired undercover dick buying boxes and boxes over the course of a year. Three co-Ds. Issue in defense was intent: distributing PE “with reasonable cause to believe” it would be used to manufacture drugs/meth. Held: evidence sufficient to show intent (see opinion). Issue with “Notice”coming into evidence, which was sent to one D by manufacturer warning against sales of multiple boxes of PE because means illegal activity. Trial court ruled Rule 16 violation by government for failing to disclose Notice and sanctionedgovernemtn by barring it from evidence, but D opened door by cross-ex of agent, so agent could testify to it on re-direct. Notice exhibit went inadvertently to jury. Harmless, because lots of evidence that D had knowledge the PE could be used illegally. Harmless as well to co-D who was wife. Court not resolve two different standards ( Smith v. Ingersoll-Rand Co., 214 F.3d 1235) to assess harm done by extraneous material going to jury, because in this case the error was harmless. No plain error in non-constitutional Booker error at sentencing.

U.S. v. Corchado, WL 2746732 (10th Cir. Oct 25, 2005)
Because evidence of guilt was overwhelming (tape recordings, cop’s testimony), not plain error for government to cross examine D with his prior drug conviction in drug prosecution, even though it was contrary to court order to get permission to do so first. Also, no constitutional Booker error when judge imposed alternate sentence in anticipation of Booker.

Booker Relief for Drug Defendant; Gov't Denied A Second Chance to Prove Quantity

U.S. v. Spencer, 2005 WL 2651377 (10/18/05)(unpub'd) - The 10th overturns a drug quantity determination on constitutional Booker grounds. Most importantly, the 10th prohibits the government from presenting additional evidence on remand to support the quantity determination because the defendant gave the government plenty of notice that its evidence was inadequate and the government didn't do anything to supplement its evidence.

Prior KS Drug Conviction Not A Felony for Sentencing Enhancement

U.S. v. Plakio, 2005 WL 2420965 (10/3/05)(unpub'd) - In a divided decision, the 10th holds that a prior drug conviction was not a felony under USSG § 2K2.1(a)(4) because the maximum punishment for someone with his criminal history was less than a year under the Kansas sentencing guidelines and after Apprendi the Kansas S.Ct. prohibited upward departures from the guidelines.

Although Apprendi Applies, No Relief for Petitioner

Allen v. Reed, 2005 WL 2697246 (10/21/05) - Ultimately, another example of how unfair habeas law is. The 10th holds the d.ct. was wrong to determine Apprendi did not apply to the petitioner's case. Apprendi applied because, although the petitioner was sentenced before Apprendi, the petitioner's state appeal was not decided until after Apprendi. BUT, this procedural victory does the petitioner no substantive good. The state court's decision that the Colorado sentencing statutes [that are like New Mexico's in that a judicial finding of aggravating circumstances allows the court to increase a sentence above the base sentence] were okey-dokey under Apprendi was not unreasonable. That was so because it was just like the decisions federal courts were making before Blakely about the guidelines. That the Colorado S.Ct. has now held that the state's sentencing statutes violate Apprendi as explained in Blakely and Booker doesn't matter. What matters is what was the "clearly established" law when the petitioner's case was final in 2002 before Blakely.

Capital Conviction Affirmed

Malicoat v. Mullin, 2005 WL 2503817 (10/11/05) - Another Oklahoma death sentence affirmed. Trying a capital case in a courtroom with the "eye for an eye, tooth for a tooth" carving behind the judge did not render the trial fundamentally unfair. It was not a violation of due process to refuse to instruct on an offense with a less-than-death maximum penalty because that offense was not a lesser-included offense under state law. The defendant could be constitutionally killed even though the jury did not necessarily find he intended to kill the child because it was enough that the defendant himself willfully committed an act which produced an injury that resulted in the death. The requirement of intent to kill only applies in felony-murder cases. The following prosecutorial conduct did not warrant overturning the conviction or death sentence: conducting closing in the voice of the child victim; arguing it was the jury's civic duty to convict; calling the defendant a monster; referring to the mitigation evidence as excuses; expressing a personal belief in the death penalty; stating without evidence that the child was named after a character in the TV show "Touched by an Angel." It was harmless to introduce into evidence an irrelevant photo of the child months before her death. It was not unreasonable for counsel to fail to give an opening statement or to introduce psychological testimony that didn't go to a relevant issue and it was not prejudicial for counsel not to investigate the defendant's history of seizures. In the course of the decision, the 10th made some observations interesting to habeasphiles about when de novo review is appropriate where the state appellate court applies a state standard different from the governing S.Ct. law.

Indictment Reinstated Over Commerce Clause Objections

U.S. v. Jeronimo-Bautista, 2005 WL 2542883 (10/12/05) - The 10th reverses a d.ct. dismissal of an indictment. It was not a violation of the Commerce Clause to prosecute the defendant for coercing a minor to engage in sexually explicit conduct to produce child porn under 18 U.S.C. § 2251(a), even though the defendant kept the resulting photos to himself and the only interstate connection was that the camera was manufactured outside the state. The 10th decided the situation was just like that in Gonzales v. Raich, 125 S.Ct. 2195 (2005), where the S.Ct. found constitutional the prosecution of the woman who produced marijuana only for her own medical needs. Congress made a rational determination that the defendant's local production of child porn constitutes an essential part of the interstate child porn market.

Objected-to Booker Error Results in New Sentencing

U.S. v. Austin, 2005 WL 2600621 (10/14/05) - The 10th discusses at length its case law and other circuit's case law regarding whether sexual contact of a minor is a crime of violence under various definitions. So, if you have a similar question, this case has already done all the research for you. After all that discussion, it decides it is bound by prior precedent to hold that, where the defendant admitted as part of his guilty plea that he touched an "intimate part" [not over clothing] of a girl under 15, when he was 19, for his own sexual gratification, while the girl was over his house participating in his sister's slumber party, the defendant's prior Colorado attempted sexual assault of a minor conviction was for a crime of violence under § 2K2.1(a)2), which uses the career offender definition under § 4B1.2. The act could not be considered consensual because the girl was under the age of consent in Colorado. The defendant did get a remand for resentencing due to an objected-to non-constitutional Booker error that the government conceded it could not prove was harmless.

No Booker Error Where Defendant Made Virtually No Sentencing Argument

US v. Jones, 2005 WL 2563061 (Oct. 13, 2005).
No plain error for non-constitutional Booker error (applying guidelines in mandatory fashion). The 10th once again refused defendant's argument based on the 4th prong of the plain error test (defendant could not show an error that seriously affected the fairness, integrity, or public reputation of judicial proceedings). There was nothing to show that the judge would not impose the same sentence on remand.

TRIAL PRACTICE NOTE: One thing the 10th noted in support of its rejection of Defendant's argument was that he “made no objection at sentencing to the presentence report, he disputed no facts, he presented no mitigating evidence, and he did not argue for a downward departure. His only request, which the district judge granted, was that his sentence run concurrently with the remaining two months of a state sentence he was serving”.

Denial of Suppression Motion Affirmed

U.S. v. Gregoire, 2005 WL 2422788 (10th Cir. 10/3/05) - affirmance of denial of motion to suppress. Mr. Gregoire, an African-American driving an older van with out-of-state plates, was pulled over by a state trooper--who was part of a drug enforcement team--for failing to signal that he was merging onto the interstate from the entrance ramp. After the trooper gave him a warning and returned his documents, the COA finds, Mr. Gregoire was free to leave, but instead chose to converse with the trooper and later consented to a vehicle search, which turned up cocaine. The COA finds it a close question, but concludes the district court did not clearly err in its factual finding of the applicability of the state statute requiring Mr. Gregoire to signal. The trooper's observations afforded reasonable suspicion for the stop and his subjective motivation for the stop is not pertinent. Mr. Gregoire waived his claim that he was stopped because he fit the drug profile because he did not develop it at the suppression hearing or in his opening brief.

Felon-In-Possession Sentence Affirmed Despite Subsequent Repeal of Relevant Definition

U.S. v. Whitehead, 2005 WL 2422484 (10th Cir. 10/3/05) - Mr. Whitehead pled guilty to being a felon in possession of a firearm. At the time of his offense, the firearm he was convicted of possessing fell within the 18 U.S.C. § 921(a)(30) definition of a "semiautomatic assault weapon." Shortly before his sentencing, however, that § was repealed. COA holds that what counts under USSG § 2K2.1(a)(4)(B), which sets a base offense level of 20, is the status of the firearm when the offense was committed, not at the time of sentencing.