2254 Petition Arguing Prejudicial Pretrial Publicity Properly Denied

Goss v. Nelson, --- F.3d ----, 2006 WL 392070 (10th Cir. 2006)

State court denied change of venue for pre-trial publicity in case where P was charged with murder of member of prominent family in small Kansas county (pop. 5,000). There was pervasive pre-trial publicity. P unsuccessfully moved twice for change of venue. Jury was selected from 88 questioned venire members, 45 who were excused for cause. P did not object to any particular juror being seated, and exercised peremptories. In his Sec. 2254 petition, P argued that the pervasive pretrial publicity was presumptively prejudicial. 10th upholds denial of Sec. 2254 petition, first noting that the S. Ct. has found presumptive prejudice from pretrial publicity in only 3 cases. This is a high hurdle that P did not meet and therefore did not show an unreasonable application of S.Ct. law. The 10th discussed the nature of the press coverage, the geographic distribution of the coverage, the timing of coverage in relation to trial, evidence presented by P of the effect on the jury pool, the 42 venire members remaining after cause challenges, and the fact that P was able to exercise his peremptories.

Clean Water Act Conviction Affirmed

U.S. v. Hubenka, --- F.3d ----, 2006 WL 392119 (10th Cir. 2006)

10th finds that Corps of Engineers has authority to regulate D’s dike-building activities on the Wind River and to deem the river as a tributary of “navigable” waters, under the Clean Water Act, giving Chevron deference to an agency’s interpretation of the statute it administers. D properly found guilty of violating the act by “adding pollutants” to the river, since statute defines pollutants as dredged soil, rock and sand.

404(b) evidence of D’s earlier attempts to divert that same part of the river in the same direction properly admitted as evidence of “knowing” violation of the Clean Water Act.

Murder Confession Result of Coercion

U.S. v. Lopez, --- F.3d ----, 2006 WL 392083 (10th Cir. 2006)

10th upholds district court’s suppression of D’s confessions to murder as a products of police coercion. Shortly after noon, D was arrested taken to Ute police station, interviewed by BIA and FBI agents, Miranda-ized, after an hour interview, denied the shooting. Asked to see his mom (he was 33), he was told he could see her but never did. Cops came bact to interview at 9 pm; D had not eaten because he had been in a fight a few days earlier and could not eat; he was in pain. Again, D was Miranda-ized, denied the killing, suggested his friends did it. Then cops engaged in molto misrepresentation (# of witnesses who fingered him; positive gunshot residue fingerprints and footprints; promises of leniency, suggesting the killing had been a mistake). Sobbing, D confessed. Before noon the next day, cops got another confession from D. 10th applies SR in favor of upholding the trial court determination of coercion, as it should; and upholding its determination that 2d confession was the product of the initial coercion.

Statutory Construction Analysis Reviewed

U.S. v. Rx Depot, Inc., --- F.3d ----, 2006 WL 401845 (10th Cir. 2006)

For those who have statutory construction issues, this is the latest pronouncement by the 10th on how it does it, in the context of the Food Drug and Cosmetic Act, in a civil case involving the question of equity jurisdiction. It probably has limited application for us.

Motion to Suppress Should Have Been Granted

U.S. v. Edgerton,--- F.3d ----, 2006 WL 401834 (10th Cir. 2006)

10th reverses denial of motion to suppress. D was in compliance with Colorado law when she had her temporary license tag clearly and prominently displayed in her rear window, although the cop could not see it due to distance and nighttime conditions on I-70. Cop permissibly pulled her over to conduct a limited investigative detention to see if paper tag was a temporary registration and to read it. Cop exceeded scope and duration of that detention when he questioned D about her travels–all cop could do was shine his light on the tag to verify its apparent compliance with the law regarding placement of temporary tags. The 10th determined that D had not violated the tag law, and rejected reading anything more into the “clearly legible” requirement of the temporary tag statute such as requiring some greater visibility of the tag for nighttime conditions.

A Guidelines Sentence Is Presumptively Reasonable, COA Holds

U.S. v. Kristl, -- F.3d --, 2006 WL 367848 (2/17/06) - the 10th's first crack at a sentence imposed post-Booker. A sentence that is properly calculated under the GLs is entitled to a presumption of reasonableness that may be rebutted by a demonstration that the sentence is unreasonable in light of the § 3553(a) factors. District court factual findings are still reviewed for clear error and legal findings de novo. If the district court errs in applying the GLs, the 10th will remand without reaching the question of reasonableness unless the error is harmless. Here, the district court erred by adding 3 criminal history points under GLs § 4A1.1(a), based on a Colorado sentence that originally exceeded one year and one month, but was reconsidered and reduced to probation.

Arrest of Defendant OK When He Shows Up at Marijuana Farm

U.S. v. Najera, 2006 WL 302461 (2/9/06)(unpub'd) - A discussion of when it's okay to arrest someone who happens to come onto the scene of a drug arrest. Here, the officers had probable cause to arrest the defendant because: he arrived at a turf farm in a remote area that was closed for the day where bales of marijuana were being unloaded; the defendant drove into the farm in tandem with someone who was in the other vehicle who was identified by one of the unloaders as someone responsible for the marijuana delivery; and the unloader indicated another person was responsible as well. The court distinguished the circumstances from those in Ybarra v. Illinois, 444 U.S. 85 (1979), where all bar patrons were illegally searched when there was evidence someone at the bar was involved in drug dealing.

Officers Violated Couple's Civil Rights

Cortez v. McCauley, 2006 WL 308260 (2/10/06) - Bernalillo County's finest detain husband and wife at 1:00 a.m. and search their home without a warrant based on a nurse's complaint that a mother told nurse that her two year old daughter said the husband of her baby-sitter had "hurt her pee pee." If the allegations were true, the officers violated the husband's clearly established Fourth Amendment rights because what they did amounted to an arrest, [officers grabbed the husband from the doorway of his home, handcuffed him, advised him of his Miranda rights, placed him in the back seat of a locked squad car and questioned him while he was in the back seat] and the officers did not have probable cause. The probable cause standard requires officers to reasonably interview witnesses readily available at the scene, investigate basic evidence or otherwise inquire if a crime has been committed before arresting. The officers didn't interview the mother, nurse or doctor, inspect the child's clothing for signs of assault or wait for a preliminary report from the doctor, who found no evidence of abuse. It was okay to consider the hearsay statement of a two-year old, but the officers needed corroboration to establish probable cause.

If the allegations were true, even if the wife was only detained, rather than arrested, the officers also violated clearly established Fourth Amendment law with respect to her. The officers did not have reasonable suspicion of her involvement in the alleged offense. The only accusations were about her husband and there was no evidence of any likelihood of evidence destruction.

Clearly no exigent circumstances existed to justify entry and search of the home. Citing an urgent need without factual support is insufficient. There was no danger to the officers, since the plaintiffs had been asleep when the officers disturbed them, the husband was dressed only in his shorts, they both cooperated, and there was no evidence anyone else was in the home.

The 10th adopted the notion that an excessive force claim could only succeed if the detention or arrest were lawful, but carried out in an excessively forceful manner, precluding relief for the wife because, while she had a reasonable case for excessive force, it wasn't a clearly established case.

Transfer of Juvenile to District Court Acceptable Despite Delay in Hearing

U.S. v. David A., 2006 WL 259660 (2/3/06) - The 10th made several unhelpful rulings regarding the transferring of a juvenile to the district court. The 10th had jurisdiction to consider the appeal of a transfer order involving a speedy trial question, despite a 9th Circuit case that held refusal to dismiss a juvenile case for a speedy trial violation was not appealable. This case is distinguishable because the defendant challenged the transfer order on speedy trial grounds; he did not move to dismiss the juvenile case on those grounds. The 30-day time limit for juvenile cases is tolled when the government files a motion to transfer unless the motion is filed in bad faith. The 84-day delay from arrest to the transfer hearing was "probably at the outer limits of an acceptable time frame" but was okay because it was due in part to the need to notify the defendant's parents who were fugitives. That some of the delay was due to court congestion---a factor not allowed to be considered in juvenile cases---could be considered because the juvenile time limit was tolled. The government did an adequate search for the defendant's juvenile records to satisfy 18 U.S.C. § 5032, even though the government did not show it looked in every jurisdiction. It was enough that it acted in good faith, despite hints by the 10th in US v. Brian N, 900 F.3d 218, that seeking a record in every N.M. judicial district and every other state might be required. The automatic transfer to district court under 18 U.S.C. § 5032 of a juvenile who has been previously "found guilty" of an act, which if committed by an adult would have been one of a set of offenses, was satisfied by an adjudication as a delinquent. The government only had to prove the defendant was previously "found guilty" of residential burglary by a preponderance. That burden was met by: certified documents with the same name as the defendant's; the defendant's failure to offer any evidence to contradict the government's claim; and defense counsel's suggestion that the defendant was the same person noted in the documents when he argued on a different issue that the defendant indicated to him the burglary did not endanger anyone [although counsel's argument did not amount to an admission].