US v Holt Effectively Overruled in Traffic Stop Case

U.S. v. Wallace, 2005 WL 3120637 (11/23/05) - Another bad traffic stop case. A police officer can ask whatever questions s/he wants as long as the questioning does not extend the length of the detention. Without mentioning U.S. v. Holt, 264 F.3d 1215, 1230 910th Cir. 2001)(en banc), the 3 judge panel effectively holds that the latest S.Ct. case of Muehler v. Mena, 125 S.Ct. 1465 (2005), overrules the en banc Holt case, which held that the constitutionality of a detention is determined not only by its length but also by the manner in which it is carried out. So much for that. The 10th also holds that the encounter after the officer handed back the SUV-related documents was ever so consensual because the officer didn't display his weapon, touch the driver or use a commanding tone of voice indicating compliance might be compelled. Although the officer thought he needed probable cause, he only needed reasonable suspicion to detain the SUV and its attached trailer to wait for a drug-sniffing dog that was to arrive in 20 to 30 minutes. The officer had reasonable suspicion because: (1) "first and foremost," there was a 4 to 6 inch gap between the trailer's floor and the bottom of the trailer, indicating a hidden compartment; (2) the defendants were hauling a small motorcycle in an oversized trailer from Maryland to California for a seven day trip ["implausible travel plans can contribute to reasonable suspicion"];(3) the driver and passenger made inconsistent statements about whether they were actual cousins or "like" cousins; and (4) the driver said the motorcycle in the trailer was a Yamaha when it really was a Honda. Plus, no relief for non-constitutional plain error under Booker.

U.S. v. Jefferson, 2005 WL 3134075 (11/23/05) - No relief for 2255 movant where his claim that attorney told him he couldn't be sentenced based on more than the quantity of drugs found on him was contradicted by the plea agreement and the plea colloquy.

Officers Reasonably Relied on Motel Clerks When Deciding to Search Defendant's Room

U.S. v. Mitchell, -- F.3d --, 2005 WL 3105700 (10th Cir. 11/21/05) - affirmance of district court denial of motion to suppress. It was OK for troopers to search motel room, in which they found stolen mail, after they were told by motel clerks the room was unoccupied. District court did not clearly err in finding Ms. Mitchell had abandoned the room, despite contrary evidence that she had reserved the room for another night. If the troopers reasonably believed that the motel clerks had authority to consent to the search of the room, the search was lawful even if Ms. Mitchell was still occupying it. With respect to restitution, even though the district court may order restitution only for losses related to the offense of conviction, it was fine for the court to order as a condition of supervised release that the defendant remain current on restitution from previous convictions.

Issues in Homicide Case Addressed

U.S. v. Visinaiz, 2005 WL 3065950 (10th Cir.Nov 16, 2005)
Instruction issues: Jury properly instructed on heat of passion, and it was proper to have the jury consider the second degree murder charge before the lesser offense of voluntary manslaughter. Court chides counsel for challenging involuntary manslaughter instruction on appeal (instruction distinguishing recklessness for M2 from IM recklessness)
when counsel approved that instruction as an alternative to one originally to be given; 10th finds it invited error but also finds that in conjunction with imperfect self-defense instruction to be no error.
Prosecutor’s closing: plain error review because not objected to; court found issues meritless. Jury selection: while generally improper to have court personnel conduct peremptory challenge process with parties, and inadvisable for the trial court in a Conway-esque fashion to regale the venire with the judge's grand achievements while the parties select the jury post-voir dire, defendant was not prejudiced. Evidence :D’s proffered evidence regarding V (prior DUI’s and incidents of intoxication) was inadmissable specific instances of conduct under R405(a); not abuse of discretion to exclude expert report when doc not there to testify; other issues not clear because not enough facts in opinion. ......V’s son is a victim under statute and cannot be excluded from courtroom after his testimony in completed.....Although D sentenced before Booker, because trial court sentenced D stating that the guidelines were not being applied in a mandatory fashion, Booker was not implicated.

Clean Water Act Conviction Reinstated

U.S. v. Ortiz 2005 WL 2858027(10th Cir. Nov. 01, 2005)
Trial court entered judgment of acquittal after jury conviction which found defendant violated the Clean Water Act by negligently discharging pollutants into the Colorado River, ruling as a matter of law that an individual is not guilty of negligently discharging a pollutant unless he knows that the pollutant's path terminates in protected water. 10th reversed: district court misinterpreted the law, and facts supported conviction. 10th also found that guideline enhancement for discharging without a permit applies even if factually impossible to obtain a permit for that kind of discharge activity, and reversed district court on this point too.

Constitutional Booker Error Found; Trial Claims Rejected

U.S. v. Nickl, 2005 WL 2858035 (10th Cir. Nov. 1, 2005).
During trial for a cluster of bank fraud charges, trial judge answered question for co-defrauding witness and interjected his opinion, violating Fed. R. Evid.605 and committing reversible error on aiding and abetting count of conviction. Other behavior by judge did not rise to plain error, and judge was not required to recuse himself: repeating prosecution examination of another witness, analogizing homosexuality to drug use during voir dire (defendant was gay), throwing defendant's partner out of the courtroom in front of the jury (10th: while judge’s behavior injudicious, he “did not display deep-seated antagonism which would make fair judgment impossible”). No due process problems with superceding indictment and bifurcated trial, since both done to deal with Blakely problems. 10th douses claims relating to exclusion of evidence, insufficient evidence, multiplicity of charges. Remand for re-sentencing on non-constitutional Booker error. Not harmless error: court sentenced at bottom end of guidelines, said sentence fair, said no discretion to depart on ground argued by Defendant, but did not “announce explicitly it would impose the same sentence if the guidelines were not mandatory.”