Tuesday, July 25, 2006

"Immigration Crisis Tests Federal Courts on Southwest Border"

The Third Branch, the newsletter for the federal courts, has this lead article titled "Immigration Crisis Tests Federal Courts on Southwest Border." Las Cruces and New Mexico are prominently featured. An excerpt from the article details some of the facts about our district:

"Criminal felony cases—those crimes punishable by at least a year in prison—have climbed 287 percent in New Mexico's federal district courts since 1997. Immigration-related felony cases have increased 661 percent in that span.
The average felony caseload (felony cases per authorized judgeship) nationwide is 87. In the District of New Mexico, which ranks first, the average is 405."
Judge Brack is quoted:
"My heart gets broken several times every day doing this job," Brack said after sentencing several men to prison. "I'm a father and a husband just like these people I'm talking to. I relate to them as a husband and a father, but I'm also a judge. When their efforts on behalf of their family involve breaking the laws of the United States, I have to say ‘basta'—enough."

The article is located at

Post-Offense Imposition of Parole Supervision Fee Not Unconstitutional

Taylor v. Sibelius, 2006 WL 2037158 (7/21/06) (unpub'd) - The post-offense imposition by Kansas of a $25 fee to pay for parole supervision did not violate the Ex Post Facto Clause because it was not a punitive measure. It did not violate the Takings Clause because it reimbursed the cost of government services. It was not a violation of due process to take the money owed out of the prisoner's inmate account (after his parole was revoked) prior to a hearing.

Employer Notification Requirement Rejected For Second Time

U.S. v. Souser, 2006 WL 2006012 (7/19/06)(unpub'd) - The d.ct. that was previously reversed because it imposed a requirement that the defendant notify her employer of her conviction, without making the proper findings, screwed up again. This time it was wrong under U.S.S.G. § 5F1.5(a)(2) for the court to impose the condition on the ground that failure to tell her employer about her conviction was the same type of conduct that lead to her original false statement conviction. The 10th observed that the rationale put the defendant in a Catch-22 position.

Officer Safety Rationale Justified Officers' Ordering Defendant to Put Hands on Head

U.S. v. Holt, 2006 WL 2022907 (7/20/06)(unpub'd) - The 10th bows to the almighty "officer safety." It was okay to order the defendant to put his hands on top of his head, (exposing a firearm), where: at an arrestee's request, an officer called the defendant and asked him to pick up some of the arrestee's belongings at the arrestee's apartment; as the officers were taking the arrestee out of the apartment elevator, the arrestee recognized the defendant: "That's my homeboy;" the defendant kept walking towards the officers until he was two feet from them and, according to the officer, "showed no signs of stopping." The 10th agreed with the d.ct.'s explanation that noted the officers' training and experience and that the defendant was an associate of the arrestee.

BP Stop on Ranch Road Supported by Reasonable Suspicion; Pre-Miranda Statements Not Suppressed

U.S. v. Carrizales-Toledo, 2006 WL 2022911 (7/20/06) - The 10th holds that a traffic stop near the border was supported by reasonable suspicion and the defendant's post-Miranda statements were admissible, even assuming pre-Miranda statements were inadmissible. Reasonable suspicion was established because: the border patrol agent had encountered smuggling in the area of the stop (near Hachita, N.M.) and his colleagues had intercepted a marijuana load there the week before; the rancher in the area told the agent no one would be working on the ranch that day; the agent saw defendant's pickup 12 to 15 miles from the border; the agent did not recognize the truck or the driver as being from the area; when the agent pulled to the side of the one-lane road to allow the defendant to pass, the defendant acted as anyone would who confronts the border patrol while carrying a load of marijuana, he stopped and started driving backward toward the border; after the agent started following the truck, the truck stopped. The 10th found that, while it was not impossible that the defendant was backing up to a wide point in the road to allow the agent to pass, the agent did not have to rule out all innocent explanations and could reasonably view the defendant's actions as suspicious.

The statements flowed very soon after the stop. When the agent stopped the truck, he noticed the defendant had his hands in the air. As the agent approached the truck, he saw piles of bundles wrapped like marijuana on the front seat and floorboard. Without giving Miranda warnings, the agent asked the defendant what he was doing. The crafty defendant cooly responded: "I was trying to get back to Mexico so you wouldn't catch me with all this stuff." The agent guilelessly queried: "With what stuff?" ["Gambling in this establishment??? I'm shocked!!!"] "The marijuana," the defendant helpfully replied. Thinking he might be able to make a case, the agent arrested the defendant. The defendant was later interrogated by the arresting agent and two or three others. The defendant then went into more detail about his trip. The 10th declined to address whether the pre-Miranda questions fell under the "public safety" exception (the d.ct.'s rationale) or the defendant was not yet in custody (the government's argument). Instead, the 10th found that the post-Miranda statements cured any inadmissibility of the pre-Miranda statements. Without reaching a conclusion, the 10th explored what test should be applied under Missouri v. Seibert, 542 U.S. 600 (2004), the case where the police deliberately did not initially give Miranda warnings in order to get statements after finally giving Miranda warnings. Four justices in that case applied an objective test and held that the second statements were inadmissible because the warnings could not reasonably function effectively under the circumstances. Justice Kennedy held that those statements were inadmissible because they were obtained as part of a subjectively deliberate plan. The 10th noted that the usual rule in a situation where no majority principle carried the day would be to apply the narrowest ground for the ultimate decision. The 10th opined, however, that that rule does not necessarily apply where, as in Seibert, one rationale is not a logical subset of the other. The quandary did not have to be resolved because the defendant lost under either Seibert principle, the 10th held. Under the plurality rule, the warning was effective in this case because: the initial questions were brief and spontaneous; the second statements were more detailed than the first statements; the second interrogation was held in a different setting at a different time and with even more officers (?) than the first; and, "perhaps most importantly," there was no evidence the second round interrogators referred to the first statements. Under Justice Kennedy's rationale, there was no evidence the officers engaged in a deliberate plan to undermine the defendant's Miranda rights and the initial statements were voluntary.

Wednesday, July 19, 2006

No IAC Despite "Demonstrable Errors" by Counsel

Goble v. Saffle, 2006 WL 1901022 (7/12/06)(unpub'd) - The 10th rejects an ineffective assistance of counsel claim on the disturbing ground that, even if counsel made "demonstrable errors," overall he did a fine job. As a result, counsel did function as counsel by adversarily testing the state's case. That's good enough.

Pre-Booker Drug Sentence Reversed Based on Suspect Snitch Testimony

U.S. v. Thornton, 2006 WL 1901035 (7/12/06)(unpub'd) - The 10th reverses a pre-Booker sentence because it violated the Sixth Amendment. The government could not prove beyond a reasonable doubt the harmlessness of the mandatory drug quantity calculations because they were mostly based on the highly suspect testimony of an accomplice. The 10th also suggests that the d.ct. could impose a below-guideline range sentence on the ground that otherwise the defendant would receive the same sentence as the more culpable snitching co-defendant.

Helpful Case For Sentencing Departures

U.S. v. Christiansen, 2006 WL 1924432 (7/13/06)(unpub'd) - This may be a helpful case if you want to justify a modest decrease from the guideline range. In the course of upholding an upward criminal history departure, the 10th notes that, while an "extreme divergence" from the guidelines requires "dramatic facts," a "moderate" deviation requires only an "appropriate justification." The case also supports our typical argument that we're not asking for an "unwarranted" disparity from other defendants, but a warranted one. The 10th further notes that a criminal history departure is not really a sentence outside the guidelines because it is encouraged by the guidelines.

Colo. 3rd-degree Assault Convictions are COVs for Purposes of USSG § 4B1.2(a)

U.S. v. Krejcarek, 2006 WL 1892573 (7/11/06) - The defendant's prior Colorado convictions for third degree assault were for crimes of violence as defined under U.S.S.G. § 4B1.2(a) for purposes of assigning a base offense level of 26 for possession of a sawed-off shotgun. Even though the assault statute provides for conviction for the causing of mental impairment, as opposed to bodily injury, a "potential serious risk of physical injury to another" is always associated with the offense. The defendant failed to prove his waivers of counsel when he pleaded guilty to those offenses were unintelligent or involuntary. Plus, [not surprisingly], he did not have the right to counsel to decide whether to waive counsel or the right to be advised at the plea that his crimes would be considered crimes of violence for federal sentencing purposes.

Most interestingly, the 10th holds that when a d.ct. departs downward pursuant to § 5K1.1 it may consider all sorts of factors, not just substantial assistance factors, in determining the amount of departure. The 10th makes this holding in support of its refusal to reverse a pre-Booker sentence. The 10th reasons the error in considering the guidelines mandatory was harmless because the court exercised complete discretion, unimpaired by the mandatory nature of the guidelines, in deciding how far to depart. It was not at all clear the d.ct. knew it had all that discretion.

Suppression Denial Remanded for Consideration of Officer's Order to Roll Up Car Windows and Open Vents for Dog Sniff

U.S. v. Ladeaux, 2006 WL 1902657 (7/12/06) - It was okay for the state police officer to require all the occupants to leave the car during a traffic stop. But, it may not have been okay to order one of the occupants to roll up the windows and turn on the vents to facilitate a dog sniff without reasonable suspicion. The 10th remanded because the d.ct. had not considered the legitimacy of the window-vent order. The 10th instructed that the d.ct. must decide whether the officer gave an order or only made a request and whether the officer directed the order to the defendant. If those findings go the defendant's way, then the defendant has the burden to show a factual nexus between the order and the discovery of the evidence, i.e., apparently that the dog would not have alerted to the car if the defendant had not closed the windows and opened the vents. The 10th acknowledges that this factual nexus requirement for passengers with no privacy rights in the vehicle, which the 10th established in Nava-Ramirez, 210 F.3d 1128 (2000) and DeLuca, 269 F.3d 1128, 1133 (2001), has been criticized for undermining the exclusionary rule and encouraging flagrantly illegal violations of passengers' 4th Amendment rights. But, the panel can't overturn that authority.

Incorrect Constructive Possession Instruction Held to be Harmless

U.S. v. Al-Rekabi, -- F.3d --, 2006 WL 1980203 (10th Cir. 7/17/06) - affirmance of conviction of possession of a stolen firearm. Mr. Al-Rekabi took a pistol from his 12 year-old brother, who had stolen it. The evidence was conflicting as to what occurred after that. The constructive possession instruction given by the trial court was wrongly framed in terms of the "right to exercise physical control." Constructive possession involves the ability, not the right, to control. Also, physical control, which implies actual possession, is not required. Nor is there a requirement of intent to control. Because there was overwhelming evidence of constructive possession and Al-Rekabi objected to the giving of any constructive possession instruction without specifically objecting to the terms of the instruction given, the erroneous instruction was deemed harmless error. The district court correctly refused to instruct the jury on necessity and fleeting possession. Al-Rekabi did not show that he had no reasonable legal alternative to possession of the pistol and did not report it to police or return it to the owner. While there was potential danger in a 12 year-old's possession of a pistol, Al-Rekabi did not show the danger was imminent. A fleeting possession defense is redundant to a necessity defense and both require the defendant to prove no reasonable legal alternative was available, which was not shown here.

Thursday, July 06, 2006

Livestock Seizure, Though Beyond Scope of Warrant, Did Not Justify Suppression of Legimately Seized Evidence

U.S. v. Blunt, 2006 WL 1793258 (6/30/06)(unpub'd) - The seizure of 110 cows, 2 pigs, 15 horses, and a mule, even if beyond what was authorized by the search warrant, did not amount to such a flagrant disregard of the warrant's limitations as to justify suppression of evidence that was legitimately seized pursuant to the warrant. It also did not warrant a mistrial when an agent testified he could not find people to cooperate in investigating the defendant because they were afraid he would kill them, given the court's curative instruction and that it was in response to the defendant's cross-examination.

Fact that Magistrate Had Previously Represented Defendant Did Not Invalidate Search Warrant

U.S. v. Guthrie, 2006 WL 1689290 (6/21/06)(unpub'd) - A search warrant related to child porn was okay, even though the issuing magistrate had represented the defendant earlier in a sexual assault case. The 10th reasoned that the magistrate did not necessarily know that it would turn out the defendant would be involved, since the warrant was directed at the defendant's parents, [with whom the defendant lived!]. Plus, in any event, the prior attorney-client relationship in an "unrelated" matter did not render the magistrate un-neutral and the evidence of probable cause was overwhelming.

Curative Instruction and Overwhelming Evidence Save Felon-in-Possession Conviction

U.S. v. Velarde, 2006 WL 1755958 (6/28/06)(unpub'd) - In a felon in possession case, officers' testimony indicating the defendant had an extensive criminal history and was dangerous, while "very troubling," did not warrant mistrial given curative instruction and overwhelming nature of the evidence. Strangely, the jury found the defendant guilty of possessing a firearm, but acquitted him of possessing a sawed-off shotgun---the same firearm they had found him guilty of possessing with respect to the first count. The defense was not a lack of knowledge that the gun was sawed-off.

Sentence of 7 Life Terms Upheld Despite Judge's Incorrect Comment to Jury that Alcoholism was Involved

U.S. v. Yazzen, 2006 WL 1775480 (6/29/06)(unpub'd) - In child sex abuse case involving a Navajo defendant, the New Mexico trial judge told the jury during voir dire that alcoholism was involved in the case when it wasn't. The judge explained to objecting defense counsel: "I assumed this would be typical of the Indian Reservation cases I get with alcohol involved." Nevertheless, no reversible error. The 10th in part relied on the failure of counsel to request a mistrial or the discharge of the entire venire. The defendant's 7 life terms remain intact because trials don't have to be perfect.

Challenge to Good-Time Calculation Summarily Rejected

Segura v. Cooper, 2006 WL 1689244 (6/21/06)(unpub'd) - Without any explanation or indication that the issue is a heavily debated one, the 10th rejects a prisoner's challenge to BOP's good time calculation where prisoners get 47 days good time per year instead of the 54 they should get.

Gov't Expert Excluded Because of Late Disclosure

U.S. v. Red Elk, 2006 WL 1669903 (6/19/06)(unpub'd) - The 10th upholds a d.ct. order excluding, as a sanction for late disclosure, government expert testimony that the lack of saliva on a towel indicated the towel was not near the deceased at the time of death, (that would contradict the defendant's theory of an auto-erotic accidental death). The d.ct. was justified because the government had not informed the defendant or the court until the last minute that it was engaging in a new round of expert work, despite its awareness of the importance of the towel issue, and the untimely disclosure precluded the defendant from testing the technical merit of the new expert testimony. Even if Rule 16 did not require disclosure, an exclusion sanction can be applied based on a failure to obey a non-Rule 16 discovery order. While the government may not have violated the letter of Rule 16, it did violate its spirit. The extreme remedy of exclusion was warranted because "a remedy that does not maintain the court's integrity and schedule does not accomplish prompt and full compliance with the court's discovery orders."

16-Level Enhancement for Colo. 1st-Degree Criminal Trespass Conviction Reversed

U.S. v. Ortuno-Caballero, 2006 WL 1785360 (6/29/06)(unpub'd) - The Court reversed a 16 level upward adjustment in a reentry sentence, holding that a Colorado conviction for attempted first degree criminal trespass was not for a crime of violence under § 2L1.2(b)(1)(A). Trespass is not burglary, which requires an intent to commit a separate crime, and "crime of violence" under § 2L1.2 must have an element of force, not just a risk that force would be used, as under 18 U.S.C. § 16. The Court noted that United States v. Venegas-Ornelas, 348 F.3d 1273 (10th Cir.2003), held only that first degree criminal trespass was a crime of violence, and hence an aggravated felony, only for purposes of the broader definition in 18 USC 16, and the definition of COV for purposes of the 16-level enhancement of USSG 2L1.2 was much narrower. In a concurrence, Judge O'Brien complains about all the irrational differences in definitions of a "crime of violence" in different contexts. If he could rewrite the law he would apply the broader definition in all cases.

39-Year Sentence Affirmed For Defendant Who Threw Molotov Cocktail at Synagogue; Temple's Daycare Center and Gift Shop Met Interstate Commerce Req't

U.S. v. Gillespie, 2006 WL 1793282 (6/30/06) - The conviction for malicious damaging of a building by use of an explosive in violation of 18 U.S.C. § 844(i) was consistent with the Commerce Clause where the defendant threw a Molotov cocktail at an outside door alcove at a Jewish synagogue. The fact that the synagogue, in addition to its religious purposes, was used as a fee-for-service day-care and contained a gift shop saved the conviction from reversal under Jones v. U.S., 529 U.S. 848 (2000)(where house arson conviction was reversed for lack of interstate commerce connection). The d.ct. did not clearly err when it found the defendant had obstructed justice when, after his trial, he wrote to the temple: "you will pay for every fallen comrade, Aryan women and child you have harmed" and "you will be shown justice" during an impending holy war [sounds like a fun client, eh?]. The 10th saw this as an attempt to intimidate witnesses at a sentencing hearing. The 39-year sentence did not violate the Cruel and Unusual Punishment Clause, given the 30-year mandatory minimum under § 924(c)(1)(B)(ii), the defendant's history of violence, Nazi paraphernalia at home and his regret that he did not do more damage. The sentence was also not unreasonable and the judge adequately explained the reasons for the sentence.

Defendant Has Affirmative Duty to Disclose for Safety-valve Reduction; Evidence of Hidden Compartment Provided PC to Search Truck

U.S. v. Stephenson, 2006 WL 1775552 (6/29/06) - A bad decision about what it takes to satisfy the disclosure part of the safety valve reduction. The defendant's offer to provide additional information upon the government's request does not satisfy the defendant's duty. The government does not have a duty to solicit information from the defendant after the defendant makes such an offer. The defendant has an affirmative duty to provide complete truthful information. The 10th distinguished this case from a 7th Circuit case where the defendant made a written request to be debriefed. But, to the extent the 7th Circuit held the government's refusal to accept the debrief request satisfied the disclosure requirement, the 10th refuses to follow the 7th. The government has no general obligation to grant a debriefing. The government's cooperation is unnecessary to comply with the disclosure requirement. The information the defendant did offer in this case was not enough to meet the requirement because the defendant did not tell "everything he knew" about his co-conspirators and probably falsely minimized his own role.

The officer had reasonable suspicion to stop the defendant's truck based solely on evidence indicating the truck had a hidden compartment [height and color shade difference between the bed and cab, fender well painted black and too much metal inside fender well]. That evidence plus a fresh weld between the cab and bed and the officer's testimony that he found contraband in 90 % of the hidden compartments he'd found, established probable cause to search the truck and arrest the defendants.

Felon in Possession Not A Crime of Violence Under Bail Reform Act

U.S. v. Ingle, 2006 WL 1828537 (10th Cir. July 05, 2006)(unpublished)

D pled guilty to felon in possession of a firearm, contrary to 18 USC 922(g)(1). The district court determined the offense was a “crime of violence” as the term is used in the Bail Reform Act, and that D’s detention pending sentencing was mandatory under § 3143(a)(2). (If a D is found guilty of a COV, then the D must be detained pending sentence unless there is a substantial likelihood that a motion for acquittal or new trial will be granted; or the Government has recommended that no sentence of imprisonment be imposed and there is clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community). The 10th found that felon in possession is not a crime of violence and reversed. Using a categorical approach, it looked at the elements of a “crime of violence” under 18 U.S.C. § 3156(a)(4)(B). The 10th found that the felon in possession offense under § 922(g)(1) is not inherently a crime of violence, and that the mere possession of a firearm by a convicted felon does not create a substantial risk that physical force will be used against the property or person of another.

No Relief for Habeas Petitioner Raising Speedy Trial, IAC Claims

U.S. v. Taylor, --- F.3d ----, 2006 WL 1828525 (10th Cir. July 05, 2006)

The 10th denies a COA for P’s 2255 claims on ineffective assistance of counsel and violation of the Speedy Trial Act. (1) Speedy Trial Act violation was raised on direct appeal and rejected. Because P alleges only a violation of the statute, he does not raise a constitutional issue as required under AEDPA, and the COA will not issue. (2) All of P's IAC claims are without merit: (a) counsel cannot be held to have anticipated P filing pre-trial motions pro se that tolled the running of the speedy trial clock and because the tolling had no impact on the Speedy Trial appeal issue, failing to raise the tolling on appeal was immaterial; (b) P could not show that he would not have entered a guilty plea but for his attorney’s alleged underestimate of the guideline sentence he faced, since the plea agreement showed that he understood the court could sentence him to the maximum statutory sentence (plea papers trump all claims of promises of leniency???); (c) P cannot show counsel was ineffective for failing to challenge his career offender status–although P claimed earlier drug convictions should not have counted because his civil rights had been restored, he provided no proof of that; (d) counsel was not ineffective for failing to challenge the omission from the bank robbery indictment of an explicit allegation of general intent. “Ample authority supports the validity of the indictment. Courts have held that when commission of the charged acts strongly implies the actor's general intent, the indictment need not specifically allege that intent.”