Uninformative 911 Call Supported Nonconsensual Entry into Home

United States v. Najar, --- F.3d ----, 2006 WL 1689231 (10th Cir. Jun 21, 2006)
In this felon-in-possession case, the Tenth Circuit found exigent circumstances supported the officers' nonconsensual entry into Mr. Najar's single-wide mobile home where there was a 911 hangup call early in the morning, the dispatcher's calls back to the residence resulted in someone picking up the phone and just laying it back down, Mr. Najar failed to go to the door for about 20 minutes, and when he did answer he denied calling 911 and said he was the only person there and everything was fine. Under such circumstances, the officers had reason to believe that someone was trying to prevent someone else from communicating with "safety officials." The Court "applaud[ed] the officers' restraint and circumspection" when they did not batter down the defendant's door in the wee hours of the morning.

Bottom line: a 911 call is a carte blanche for the cops to enter your home, and there is an implication that if you don't answer the door, the cops are within their rights to bust right in.

Article on Unreliability of Eyewitness Testimony Available

The Federal Courts Law Review proudly announces the publication of
Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness
Testimony by Dr. Henry Fradella.
Dr. Fradella, a lawyer and professor of criminology, finds that there are at least 125 criminal cases in which post-conviction DNA evidence has exonerated persons who were mistakenly identified as the perpetrators of serious crimes. Dr. Fradella reviews the scientific literature pertaining to perception and memory and analyzes the complex factors that bear on a human being’s ability to remember what occurred during the commission of a crime and to then identify its perpetrator. He concludes
that these factors are certainly beyond the common knowledge of jurors and that educating them as to their significance is crucial to the jurors’ realistic assessment of the accuracy of the eyewitness testimony they have heard. He therefore urges the courts to abandon their refusal to admit expert witness testimony as to the scientific factors pertaining to the validity and accuracy of eyewitness identification and permit jurors to hear this vitally important information.

Dr. Fradella’s article can be found at http://www.fclr.org/2006fedctslrev3.htm

Habeas Petitioner's Fifth Amendment, Due Process Claims Rejected

Lee v. Crouse, --- F.3d ----, 2006 WL 1617541 (10th Cir. June 13, 2006)

Two 2254 issues: Wyoming prisoner pleaded guilty to two counts of sexual abuse of a minor.

(1) P claimed that his 5A right against self-incrimination was violated by the trial court, which maxed him out on his sentence, explicitly drawing an adverse inference that he was not amenable to treatment because he elected not to submit to a prosecution requested evaluation before sentencing. The 10th discussed US Sup. Ct. decisions in the 5th Amendment/sentencing context: Estelle v. Smith, 451 U.S. 454 (1981) and Mitchell v. United States, 526 U.S. 314 (1999), and Griffin v. California, 380 U.S. 609 (1965); it reviewed and quoted extensively from the Mitchell dissent; it determined that those cases hewed closely to their facts; and it found that the Supremes have not yet reached the precise issue of whether a sentencing court in a non-capital case may, for purposes other than determining the facts of the offense of conviction, draw an adverse inference from a criminal defendant's refusal to give a statement or cooperate. The 10th found that because there is no “clearly established” federal law prohibiting what the trial court did, the Wyoming S. Ct.’s upholding of the trial court action was not “contrary to” or an “unreasonable application of” clearly established federal law. It denied the petition as not meeting AEDPA’s standard.

(2) One sex abuse count involved an offense occurring before 1997, the second count involved an offense occurring in a date range of before and after 1997. P allegedly admitted the date range during his plea. The prosecutor moved for re-sentencing because the sentence on the first, pre-1997 count was incorrect: the law increased the sentence for abuse offenses in 1997, and the trial court incorrectly applied the post-1997 increase to the pre-1997 offense. At the same time the prosecutor supplemented the record with facts supporting post-1997 dates for the second count. The 10th held no COA on P’s claim that the trial court violated Double Jeopardy and Due Process by allowing the prosecutor to supplement the record with facts supporting the post-1997 date for the offense in the second count during re-sentencing. The 10th found that DJ was not implicated–there was no issue of successive prosecutions or multiple punishments for the same offense. It also found that although a supplementing of the record at re-sentencing may not have been kosher, P’s sentence was not increased, he had already admitted the offense occurred after 1997, and by virtue of the indictment there was probable cause, so no DP violation. (Interestingly, Judge Hartz dissents and would have granted a COA on the DP issue. He pointed out that unlike a conspiracy this offense was not a continuing offense. He found that the facts did not establish P pleaded guilty to the date range–P did not admit the offense occurred anytime within the date range, but only at some time in the range, with that specific time potentially being before 1997. The indictment did not charge the offense, as it could not, as a continuing offense. Thus, P raised a substantial constitutional claim under Apprendi. Hartz would have found a failure to exhaust, but opined that a reasonable jurist might have found no procedural bar.)

Falling Asleep at the Wheel Does Not Support 6-Level Enhancement for Creating Substantial Risk of Injury or Death in Transporting Aliens Case

U.S. v. Aranda-Flores, --- F.3d ----, 2006 WL 1618960 (10th Cir. June 13, 2006)

10th vacated D’s 79-month sentence for transporting illegal aliens as having been improperly enhanced under U.S.S.G. § 2L1.1(b)(5) (adding a 6 level enhancement for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.”) D had been driving, fell asleep at the wheel and collided with another vehicle, causing the deaths of that driver and one of his own passengers.

The 10th stated that the enhancement focuses on the D’s conduct, not on the resulting deaths. The fact that D intentionally drove at night and on a 2-lane road to avoid detection, and that he drove 8 hours straight with only one stop, did not recklessly create a risk, contrary to the district court’s findings. Falling asleep at the wheel is not enough. The 10th notes that other evidence, not in the record, could support recklessness: that D had a propensity to fall asleep at the wheel; that he ignored warnings that he was falling asleep; that he embarked on the trip while sleep deprived. Driving without a US license does not indicate he was unfit to drive and his motive to avoid detection by itself was not material. (Warning: in dicta the court voiced that the D, “as a carrier of four passengers on an illegal mission, should be held to a heightened duty of care,” but it nevertheless found that the evidence showed only negligence).

Another Southern NM Stop Affirmed

U.S. v. Mendez, 2006 WL 1633539 (6/14/06)(unpub'd) - In finding reasonable suspicion to stop a motorist, the 10th notes that, lo and behold, practically every north-running highway in southern New Mexico has been characterized as a known smuggling route, e.g. Highways 80, 52, 26, 185, 85, 180.

Habeas Petitioner Entitled to Attorney For Evidentiary Hearing

U.S. v. Maxwell, 2006 WL 1587507 (6/12/06)(unpub'd) - The 10th overturns 2255 denial where the movant did not have an attorney during an evidentiary hearing to determine if he had requested his attorney to appeal. No prejudice need be shown. Habeas Rule 8(c) requires an appointed attorney when a hearing is held.

No Plain Error Based on Gov't Failure to Disclose Witness's Polygraph Results

U.S. v. Wilson, 2006 WL 1618148 (6/13/06)(unpub'd) - It was not plain error for the d.ct. to refuse to order the government to disclose the data that resulted from a witness's polygraph examination after which an agent told the witness the results indicated he had lied when he said the defendant was not involved. It was okay for the d.ct. to rely on an § 851 information charging the defendant with a prior drug conviction even though a superseding indictment was filed after the filing of the § 851 information.

Partially Obscured License Plate Is Cause For Traffic Stop

U.S. v. Arciga-Bustamante, 2006 WL 1659779 (6/16/06)(unpub'd) - It was okay for an officer to stop the defendant for not having a clearly visible license plate where half the state name on the plate was covered by a decorative border and the officer could not see the state name until he was on the shoulder, almost directly behind the car.

5 Years in Isolation Awaiting Prosecution Is Not a Due Process Violation

Jordan v. Federal Bureau of Prisons, 2006 WL 1587456 (6/12/06) - Due process was not implicated by a prisoner being put in segregation for five years awaiting a murder prosecution. Conditions weren't so atypical for the prisoner.

Fed.R.Crim.P. 6 Applies to Prosecutor-Grand Juror Communications

In re Special Grand Jury 89-2, 2006 WL 1644716 (6/15/06) - In a law suit to allow grand jurors to disclose the government and corporate shenanigans that were involved in the grand jury proceedings investigating the Rocky Flats Nuclear Weapons Plant, the 10th holds that Fed. R. Crim. P. 6(e), which governs grand jury secrecy, covers exchanges between grand jurors and prosecutors. The d.ct. could permit disclosures regarding grand jury proceedings if the disclosures are needed to avoid a possible injustice in another judicial proceeding, the need for disclosure is greater than the need for continued secrecy, and the disclosures cover only needed material. The d.ct. might have inherent authority beyond Rule 6(e) to allow disclosures in exceptional cases.

Alien Found in 9th Circuit May Be Detained in 10th Circuit and Subject to Less-Favorable Law

Ballesteros v. Ashcroft, 2006 WL 1633739 (6/14/06) - In a removal case, the 10th applies 10th Circuit law regarding what is an aggravated felony conviction to an alien who was found in Idaho, which is in the 9th Circuit. The alien did not have the right to the application of the more favorable 9th Circuit law, [state defendant who would have qualified for Federal First Offender Act treatment does not have a conviction for immigration purposes]. It was okay for ICE to have a rule to detain in Colorado those aliens found in Idaho.

Stating "I'm Ready to Go to Jail" Is Not an Invocation of Miranda Rights and May Be Used As An Admission of Guilt; Batson Claim Rejected

U.S. v. Nelson, -- F.3d --, 2006 WL 1669889 (10th Cir. 6/19/06) - after police executed a search warrant, arrested Mr. Nelson, and advised him of his Miranda rights, Mr. Nelson asked what the police had found. When told they had found cocaine, marijuana, PCP, a gun, and documents, Mr. Nelson said, "I guess I'm ready to go to jail then." The 10th holds the district court correctly denied suppression of that statement; a reasonable police officer would not have understood the statement as an invocation of a Miranda right. The prosecutor properly used the statement at trial as an admission of guilt and did not try to draw the inference from the statement that the defendant was guilty because he declined to speak or invoked his rights. The COA discusses at length and ultimately rejects Mr. Nelson's Batson challenge. The prosecutor peremptorily struck all three African American veniremembers; the district court sustained Mr. Nelson's objection to the strike of one of them. On appeal, only the strike of one prospective veniremember was at issue -- a college professor. The prosecutor's stated reason -- that the strike was based on the professor's occupation -- was race neutral. The district court's finding of no discriminatory intent is reviewed only for clear error, which Mr. Nelson failed to establish. Finally, the district court did not err by failing to hold a Franks hearing. Because there was sufficient independent corroboration of the ci's information from police surveillance of the ci's controlled buys, negative information about the ci's veracity would not have defeated a showing of pc.

Habeas Decisions

Allen v. Beck, 2006 WL 1469280 (5/16/06)(unpub'd) - A claim of actual innocence unattached to a constitutional violation is not cognizable in a non-capital habeas case.

Boltz v. Jones, 2006 WL 1495030 (6/1/06)(unpub'd) - The 10th overturns an order staying an Oklahoma murder and dismisses a challenge to the lethal injection method of execution.

OK to Destroy Evidence of Meth Production; Sentence Enhancement for Causing Death OK But Restitution for the Death Reversed

U.S. v. Ward, 2006 WL 1462166 (5/30/06)(unpub'd) - It was not a due process violation for a firm hired by the DEA to destroy the evidence of meth production, since the DEA followed its procedures and it usually destroys almost all meth-related items, especially when a fire has occurred as in this case. The 10th did say, however: "In spite of the destruction policy (and the deference of other investigatory agencies) bad faith might be inferred." But, that was not the factual finding in this case. End of story. The defendant's prior convictions for manufacturing meth were properly admitted to show knowledge of the meth production process, even though the defendant had previously used a different method of production. The d.ct. erred in imposing restitution for the parents of the deceased victim of the fire that consumed the trailer where the meth was produced because the defendant was acquitted of the murder charge. While the court could enhance the defendant up the wahzoo (sp.) imprisonment-wise for related conduct such as killing someone, the restitution statute did not allow imposing restitution based on conduct of which the defendant was not convicted.

No Authority for District Court to Stay Execution of Prison Sentence and Impose Probation

U.S. v. Prows, 2006 WL 1495017 (6/1/06) - As both parties agreed, the d.ct. did not have the authority to stay execution of the prison sentence and impose probation instead. The Sentencing Reform Act eliminated that procedure. The 10th remanded for the d.ct. to decide if it has the authority to impose probation. The government, as the appellant, did not fulfill its obligation to complete the record to show whether the defendant was convicted of an offense that was a Class B felony precluding probation or a Class D felony that permitted probation.

The d.ct. erred in dismissing the defendant's 2255 motion as premature. The government's appeal did not deprive the d.ct. of jurisdiction to address the 2255. The issues raised in the appeal and the 2255 are completely different issues. The 2255 motion was not defective due to the failure of the defendant's attorney to sign it because the public defender's appointment did not extend to the 2255.

Possession of Ephedrine A "Drug-Trafficking" Crime under 924(c)(1); 322-month Sentence Reasonable

U.S. v. Rockey, 2006 WL 1520258 (6/2/06) - Possessing ephedrine is a "drug trafficking crime" under 18 USCA § 924(c)(1)(A), even though ephedrine is not a controlled substance. A "drug trafficking crime" includes any felony punishable under the Controlled Substances Act. The evidence was sufficient for 924(c) where the firearm was found in a bag with meth implements. It was okay to impose an enhancement for using the firearm in connection with a crime of violence even though the jury refused to find beyond a reasonable doubt in a special interrogatory that the defendant fired at an officer. As we all know too well, the sentencing standard of proof is only a preponderance standard. And, in this case, the jury did make a finding that the defendant created a serious risk of injury or death, presumably from waving the firearm. The defendant's 322 month sentence was reasonable even though he will spend the rest of his life in prison. The 10th agreed with the district court's explanation: "any sentence is potentially a life sentence, if you commit crimes as you get older."

No Due Process Violation Where Defendant Not Allowed To Present Expert Evidence; OK to Enhance Sentence Based on Uncharged Drugs

U.S. v. Rodriguez-Felix, 10th Cir. No. 05-2142 (6/2/06)(No westlaw cite yet) - The defendant was not denied his due process right to present evidence when the court refused to allow his eyewitness expert to testify. The 10th indicated that such an expert would be okay under certain limited circumstances where the expert could provide insight to the jury on a matter not commonly known, e.g. identification after a long delay, cross-racial identification, the feedback factor, unconscious transference, observation under stress. But the d.ct. did not abuse its discretion here to preclude the expert's testimony because the proffered expert report was insufficient to allow the court to assess the reasoning and methodology of the expert's opinion. The report did not indicate whether the expert's research had been peer-reviewed, published or accepted by other psychologists and did not refer to recognized scientific research. "The requirements of Daubert are not satisfied by casual mention of a few scientific studies." Plus, the proposed testimony did not fall outside the jury's common knowledge and experience. Defense counsel's effective cross-examination exposed the common sense deficiencies in the prosecution's identification case. Plus, any error was harmless given the four eyewitness identifications and the videotape and photo of the person who sold cocaine to undercover officers and the juror's opportunity to compare the cocaine dealer to the defendant. The d.ct. also did not err by refusing to pay for the expert to testify at a Daubert hearing,.given the inadmissibility of the expert's testimony. The defendant was given "the basic tools of an adequate defense," i.e., he could cross-examine, and that's all due process requires.

It was also not error to refuse to allow a photo to be taken in the courtroom of the defendant next to the officer to show the size differential that was not apparent on the video between the cocaine dealer and the officer. Given the eyewitness testimony and the opportunity for the jury to compare the defendant to the photos and video of the dealer, the evidence was sufficient, even though the video indicated the officer was shorter than the cocaine dealer and in court the officer was much taller than the defendant.

As we've learned many times, after Booker, it is perfectly okay for the district court to enhance a sentence based on uncharged drug dealings. It was okay to do so in this case as well. Another word to the wise: the 10th would not address the defendant's appellate objections to the PSR because the objections below were not included in the record on appeal.