Thursday, March 30, 2006

Drug Manufacturing Convictions Result in Life, 30-year Sentences; 10th Rejects Speedy Trial, Suppression, Sentencing Arguments

U.S. v. Apperson, --- F.3d ----, 2006 WL 775152 (10th Cir. March 28, 2006)

Convicted of LSD possession with intent and manufacture, one D sentenced to life and the other to 30 years. According to informant, operation began in 1996 until it was busted in 2000, and operated in Colorado, Taos, and finally in Kansas. (1) Speedy Trial Act 18 U.S.C. § 3161(C)(1): while 10th’s calculation of excludable days differed from district court’s, no more than 70 non-excludable days elapsed between indictment and trial. The statutory exclusion of time for disposition of pre-trial motions includes court continuance of hearing on motions without an “ends of justice” determination; time needed for a James hearing (admissibility of co-conspirator’s statements) on severance motion excludable; READ OPINION for other facets of the 10th’s totting up of the time periods. (2) Suppression: (a) reasonable suspicion–probable cause--supported stop of Ds’ vehicle in which they had the disassembled lab, chemicals, a recipe, based on informant’s info and DEA seeing the lab in place at missile silo site in Kansas where lab had last been set up before it was disassembled and moved; informant who had been co-conspirator could consent to DEA entry into the lab; (b) search warrant affidavit established PC to search silo, warrant was sufficiently particular. Court also found Ds lacked privacy interest in site (informant was titled owner); (c) video surveillance warrant also supported by same PC, and supported by conclusion that Ds had no privacy interest in silo. (3) Although “[T]he grand jury process is abused when the prosecutor uses it ‘for the primary purpose of strengthening the Government's case on a pending indictment or as a substitute for discovery” there was no evidence such was the case in the second superseding indictment brought by the government. (4) No abuse of discretion in not granting severance of Ds; no gross disparity in evidence against two Ds; nothing to show that co-Ds testimony if separate trials would be exculpatory to D moving for severance; (5) no denial of discovery rights (read opinion); (6)there was no denial of pretrial conference pursuant to Classified Information Procedures Act (one D said he thought he was involved in a secret program with the government alleging Afghan warlords, etc.). Conference was held, D’s claims meritless. (7) limits on cross examination of government witness upheld (no questions on drugs, crime of violence, firearms, past work as government informant, failed polygraph; questions on fraudulent activity and other crimes allowed. Court did not absolutely preclude inconsistent testimony questions. (8) no judicial misconduct (read opinion) (9) no abuse of discretion in evidentiary rulings : admitting incomplete tape omitting one D’s exculpatory statements; excluding hearsay E-mails; allowing government to play the same tape multiple times; allowing informant to testify that handwriting was a D’s under Rule 701; not admitting defense witnesses which would have required delaying trial and whose testimony was cumulative, and witnesses who had taken the 5th; (10) no abuse for not granting use immunity to witnesses–no showing that government’s refusal to grant immunity was to distort the fact-finding process. (11)no error in refusing D’s jury instructions on entrapment by estoppel, public authority, because insufficient evidence to support (12) no abuse in limiting closing to 90 minutes each D (10th approvingly cites 5th cir. Case where D got only 10 minutes close for case involving 6 year conspiracy, 40 witnesses, 12 count conspiracy etc.!) (13) no prosecutorial misconduct (14) D #1: guidelines correctly calculated and no Booker plain error D#2 all sentencing issues moot because subject to mandatory life because of two prior felony drug convictions.

Suppression in Train Case Reversed; Very Little Expectation of Privacy in Train Roomette

U.S. v. Denny, --- F.3d ----, 2006 WL 775167 (10th Cir. March 28, 2006)

A wee bit of privacy slippage in train roomettes and property: the 10th reversed J. Parker’s suppression of drug evidence seized from D’s Amtrak sleeper car. DEA check revealed D bought his one way ticket LA to NJ the day before, and that he had a pre-1998 drug conviction, so he was targeted for the welcome treatment. Two issues: Privacy in roomette, privacy in Ritz box inside baggie. D allows agent into roomette to search bags there, but actually limits search of gym bag; agent steps out but sees D take out of bag a Ritz cracker box in a baggie and place it under the cushion; D allows agent back in to search the gym bag but nothing there. Agent asks about Ritz box under the cushion and D says not his. Agent and D step back out so agent can pat-down D. Then agent steps back in and gets the Ritz box which he considers abandoned, finds coke in it. (1) 10th says that agent did not need additional permission to walk back into roomette to retrieve box–no legitimate expectation of privacy at that point. (2) by voicing no ownership interest in Ritz box, D objectively abandoned it (rejecting the nice district court analysis of why it was NOT abandoned).

Tuesday, March 28, 2006

Conviction in Felon-in-Possession Case Upheld

U.S. v. Ledford, 2005 WL 3047956 (11/15/05)(previously unpublished, but now published) - In a felon-in-possession case, testimony by an officer about the defendant's girlfriend's statement to him that the defendant threatened to kill her was inadmissible as a state-of-mind hearsay exception, because the reason for her scared state of mind does not fit the exception. But, the statement was admissible on two other grounds: (1) as non-hearsay to show why she took the police to the dresser drawer where the defendant's gun was, [certainly not to show what a bad guy the defendant was]; and (2) as an excited utterance, since the girlfriend was still under the excitement prompted by the threat 35 minutes after the threat in that the defendant threatened to kill her if she talked to the police and she was at that very moment talking to the police. Anyway, any error was harmless, given the defendant's problematic statements regarding his relationship with the gun.

It was okay that the trial court instructed the jury the government was only required to prove the defendant's knowledge of and access to the gun. The government did not have to prove the defendant intended to exercise dominion and control over the gun in a joint occupancy situation. It was also okay that the court did not instruct on the necessity to prove a nexus between the defendant and the gun. The 10th said it might have to consider the need for such an instruction in a future case, but not here where the nexus was apparent. That initially the 10th Circuit's proposed pattern instructions contained an intent requirement doesn't matter because they do not constitute an "adjudicative approval of the content of the instructions" and, in any event, the proposed instructions were changed to eliminate the intent requirement,

Evidence of Subsequent Crime Properly Admitted as 404(b)

U.S. v. Mares, 2006 WL 752017 (3/24/06) - The 10th affirms the defendant's conviction and sentence. The 10th teaches a valuable lesson: it's not a good idea to subsequently commit the same crime you're charged with committing. The d.ct. did not abuse its discretion in allowing the government to present evidence the border patrol found 43 kilograms of marijuana in the gas tank of a car the defendant was driving when she was being charged with possessing with intent to distribute 32.5 kilograms of marijuana the border patrol found in the gas tank of a car she was driving. The evidence was admissible under 404(b) to show the defendant willingly and knowingly engaged in a drug trafficking scheme, rather than being unknowingly duped by the car's owner. The offenses were similar in the method of concealment, the defendant's claim that she was borrowing a car that had no available registration, the fact that she had a prepared cover story and she blamed the same mastermind. Subsequent conduct is admissible under 404(b). The difference in time (one year) and place (just south of Alamogordo vs. El Paso) did not render the evidence meaningfully less probative.

The d.ct. correctly refused to give a minor role reduction based on the greater planning involved than with respect to the usual defendants bringing the contraband on a short turn-around trip to Las Cruces and the defendant's statement that she was "hired" to do the drug run. The d.ct.'s obstruction of justice enhancement for perjury at trial was also okey dokey. The 51 month sentence was reasonable, given the presumption of reasonableness of a guideline sentence, despite the defendant's circumstances, including having two young children, one of whom had health problems, and her own medical problems. The 10th made two important observations. One, to improve a defendant's chances on reasonableness review, it is very important that the defendant frame her request for a lower than guideline sentence, not only in terms of a departure, but also in terms of how the mitigating factors fit within the § 3553(a) framework. Two, the 10th stated the d.ct. may have been able to justify a nonguideline sentence on the basis of the defendant's personal history and characteristics. But, the d.ct. was not obligated to give such a sentence. So, reasonableness clearly is a range and the 10th ignores the parsimony requirement in its reasonableness review.

Tuesday, March 14, 2006

Gov't Successful in Reversing Guidelines Sentence

U.S. v. Montgomery, 2006 WL 574418 (3/10/06) - The government successfully appeals a district court's post-Blakely, pre-Booker vacation of its original upward departure order. The district court initially imposed an upward departure. Blakely was decided a few days later. The district court granted the defendant's motion for reconsideration, ruled Blakely precluded the departure and imposed a sentence at the highest end of the guideline range. The district court erred by treating the guidelines as mandatory. The defendant could not prove the error harmless because the district court indicated it would impose a higher sentence if it had the discretion to do so.

Computer Search Approved

U.S. v. Grimmett, 2006 WL 574420 (3/10/06) - No additional search warrant was required to authorize search of the defendant's computer where the warrant affidavit asked to be able to search the computer and noted the need for careful examination of the computer and the warrant sought seizure of the computer and referred to the warrant affidavit. This case was not like U.S. v. Carey, 172 F.3d 1268 (10th Cir. 1999), where the officers searched pursuant to a drug warrant and then proceeded to look for child porn. Here, the officers acted pursuant to a child porn warrant. Besides, "we have adopted a somewhat forgiving stance when faced with a particularity challenge to a warrant authorizing the seizure of computers" How very kind of the 10th to be so forgiving.

The computer search was not an impermissible general search. The officer only looked at files that had certain file extensions, such as "jpg," that indicated the files had images. The warrant was sufficiently particularized regarding the search for non-computer-related property, such as videotapes, because the warrant limited the officers to searching such items that were related to child porn.

18 U.S.C. § 2251(a) is a proper exercise of the interstate commerce clause facially and as applied to the defendant's intrastate production of child porn. The 10th followed U.S. v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005), which rejected a similar as-applied challenge. The intrastate production of child porn is a commercial activity that Congress could rationally conclude could affect interstate commerce.

Tuesday, March 07, 2006

Prison Telephone Recordings Properly Admitted

U.S. v. Faulkner, -- F.3d --, 2006 WL 533872 (10th Cir. 3/6/06) - Recordings of phone calls from CCA prison in Leavenworth, in which plans were made to murder a witness, were properly admitted under the consent exception. Inmates were amply warned that their calls were subject to recording. The consent of one party is enough. There was no confrontation violation because the out-of-court statements were not admitted for the truth of the matter asserted. Conversations in which co-conspirators plan the venture and agree to participate do not constitute hearsay.

Ancient Driving History Did Not Support Stop; Error to Enhance Sentence for Altered Serial Number on Gun.

U.S. v. Laughrin, 2006 WL 497634 (3/2/06) - The 10th holds it was a violation of the 4th Amendment for an officer to stop a car when the officer had not seen any traffic violation. The court had held it was okay to stop the car because the officer knew the defendant's driving record, which included 22 weeks earlier a driving with suspended license citation and other such violations before then. The officer assumed the defendant still did not have a license, but he actually did. The 10th (Judge Hartz) waxes eloquent on the principle that it is not enough reason to stop somebody just because the person has a prior criminal record. The 10th suggested that perhaps its ruling would be different if the defendant's prior suspended license violation had been more recent or the officer knew that the length of suspension covered the time when he stopped the defendant.

The 10th held the district court erred when it enhanced the defendant's sentence under § 2K2.1(b)(4) that requires a 2 offense level increase if the firearm involved had an altered or obliterated serial number. The defendant's firearm [not the one illegally found by virtue of the stop] was manufactured before the year serial numbers were required by law and so it had no serial number to be altered or obliterated. The plain language of the guideline requires this result and the Commission's failure to change that language over the years, despite amending other parts of § 2K2.1, shows it was content with the judicial interpretation the courts had given to it.