Several 10th Cir. cases, only the first one of which is published:
U.S. v. McCulloch, 2006 WL 2294846 (8/10/06) - Officers may search a home without a warrant where they have probable cause to believe a burglary is in progress. The officers had such probable cause ("PC") here where an alarm company had alerted the police, the officers were confronted at the home by 2 people who were unusually dirty, had no form of personal identification, were admittedly not the homeowners and were acting nervously. That PC did not dissipate when the officer observed the alarm was still indicating a disturbance (even though the officer could have been the one who set the alarm off again), and the phone conversation with the claimed owner did not assuage the officers' suspicion, since she refused to say the two suspects had authority to be inside the residence. Leaving the scene to get a warrant would have allowed the suspects to continue the burglary and/or flee. [What about a telephonic warrant?]
In resolving a motion for a new trial based on new evidence, the trial court is expected to make its own credibility judgments when deciding whether the new evidence would probably produce an acquittal. In this case, the d.ct. properly denied the motion on the grounds that it disbelieved the inmates who testified the government's inmate witnesses conspired to testify falsely.
There was sufficient evidence the defendant participated in a conspiracy to use her residence for drug-trafficking, despite the lack of evidence of her direct participation, where firearms, large quantities of cash and cocaine and marijuana, were found in parts of her house that she probably used (e.g. the kitchen and the closet where she kept her clothing); a number of witnesses testified about drug transactions with the co-defendant, (her significant other), at her house and the defendant received money on a regular basis from the co-defendant. The jury could also logically convict the defendant of maintaining a residence and acquit her of possessing drugs on the date of the search of her residence. The jury could buy her testimony that she was staying with friends at that time, but still conclude she made the residence available to the co-defendant for drug-trafficking purposes. There was also sufficient evidence to convict the co-defendant of possession of the drugs found in the house where he had a long-term intimate relationship with the defendant and stayed at the house on a regular basis, his personal items (clothes, etc.) were found in the house and witnesses testified to his distribution of drugs to them. There was sufficient evidence the co-defendant possessed firearms in furtherance of drug trafficking where the guns were loaded, easily accessible, just down the hallway from the drug transactions in the kitchen and not apparently used for sporting purposes. The indictment was not multiplicitous because conspiracy and maintaining convictions were separate offenses.
The 10th also took a stand against consideration of the unfair cocaine powder vs. crack cocaine sentencing disparity. The 10th expressed agreement with those cases that refused to find a guideline sentence unreasonable for a refusal to deviate from the guideline range based on that disparity (an issue presented in this case) and those two circuits that have held it was improper to go below the range due to that disparity (an issue not presented in this case).
U.S. v. Serna-Valdiviezo, 2006 WL 2328745 (8/11/06)(unpub'd) - Victory by Shari and Dennis applying Terry's and Joe's victory in Sanchez-Juarez, 446 F.3d 1109. The defendant presented a non-frivolous argument for a below-range sentence (prior alien smuggling conviction wasn't so serious) and therefore the d.ct. erred when it didn't explicitly consider the § 3553(a) factors.
U.S. v. Lopez-Camas, 2006 WL 2171491 (8/3/06)(unpub'd) - The 10th explains why it applied a reasonableness review regarding the sentencing methodology in Sanchez-Juarez, but a plain error review of the sentencing methodology in Lopez-Flores, 444 F.3d 1218, even though in both cases the defendants did not object to the methodology. In this case, the defendant requested a reduction in the criminal history category based on over-representation. Because the defendant did not mention in the d.ct. reasonableness or the § 3553(a) factors, plain error review applied to the question whether the d.ct. inadequately explained its reasons for its sentence.
U.S. v. Terrell, 2006 WL 2328747 (8/11/06)(unpub'd) - A frightening decision on the right to counsel. An officer on a federal DEA task force did not violate the defendant's Sixth Amendment right to counsel where the defendant was appointed counsel on a state charge of possessing cocaine because the officer asked questions about a conspiracy to possess that cocaine, not just the possession of that cocaine (!!!). The defendant's statements may not be admissible in state court, but his Sixth Amendment rights were not violated in this federal case.
U.S. v. Dallah, 2006 WL 2294848 (8/10/06)(unpub'd) - Another example of the 10th's willingness to go along with upward variances from the guideline range. In this international kidnapping case, it was reasonable to impose the statutory maximum sentence on the ground that the defendant intended to continue to avoid the state child custody order.
U.S. v. Johnson, 2006 WL 2328750 (8/11/06)(unpub'd) - Another such very scary example where the d.ct. imposed 4 consecutive 24 month sentences [96 months total!!!] for violating supervised release conditions.
U.S. v. Henderson, 2006 WL 2171521 (8/3/06)(unpub'd) - The defendant did not have standing to protest a search of an outbuilding where he was staying overnight because he was merely present with the householder's permission, not an overnight houseguest present by invitation [is that clear?].
U.S. v. Christian, 2006 WL 2328749 (8/11/06)(unpub'd) - The officers had probable cause to arrest the defendant for interference with officers because he refused requests to leave an area where the officers were dealing with other people, even though the defendant never stepped between the officers and those people.
U.S. v. Brown, 2006 WL 2259290 (8/8/06)(unpub'd) - The 10th distinguished cases where courts held consents to search to be involuntary where a large number of officers encountered an occupant of a home in the early morning hours. Unlike in those cases, in this case, the consenter was awake at 3:15 a.m.
U.S. v. Thomas, 2006 WL 2171509 (8/3/06)(unpub'd) - The 10th suggests the prosecutor's cross-examination of a defense witness about her not speaking up about the defendant's alibi at his detention hearing that she attended may have been improper under 403, since it wasn't relevant. But, it's harmless.
U.S. v. Nelson, 2006 WL 2259364 (8/8/06)(unpub'd) - The d.ct. abused its discretion in denying the defendant's motion for return of property where the government was retaining property that would not be necessary for any potential resentencing.
Preble v. Estep, 2006 WL 2212686 (8/4/06)(unpub'd) - The 2254 petitioner did not meet the stringent AEDPA standard of review where he was disciplined in prison solely based on information from a confidential informant ("CI") without additional evidence establishing the CI's reliability. The 10th acknowledged that some circuits have held such an occurrence violated due process, but denied relief because the S.Ct. had never so held.
Martinez v. Martinez, 2006 WL 2076792 (7/27/06)(unpub'd) - Footnote in a 1983 case: "It is said that you catch more flies with honey than with vinegar, and Mr. Martinez seems to have taken this saying to heart. Affixed to Exhibit 12 of his federal complaint is the top of a container of grape jelly. Grateful as we are that Mr. Martinez submitted jelly rather than vinegar, we are unswayed by this evidence and consider only the more usual submissions."
Whitehead v. Unknown Agency, 2006 WL 224456 (8/7/06)(unpub'd) - The 10th upholds the d.ct.'s refusal to grant the plaintiff's request for an injunction to stop the voices in his head.
U.S. v. McCulloch, 2006 WL 2294846 (8/10/06) - Officers may search a home without a warrant where they have probable cause to believe a burglary is in progress. The officers had such probable cause ("PC") here where an alarm company had alerted the police, the officers were confronted at the home by 2 people who were unusually dirty, had no form of personal identification, were admittedly not the homeowners and were acting nervously. That PC did not dissipate when the officer observed the alarm was still indicating a disturbance (even though the officer could have been the one who set the alarm off again), and the phone conversation with the claimed owner did not assuage the officers' suspicion, since she refused to say the two suspects had authority to be inside the residence. Leaving the scene to get a warrant would have allowed the suspects to continue the burglary and/or flee. [What about a telephonic warrant?]
In resolving a motion for a new trial based on new evidence, the trial court is expected to make its own credibility judgments when deciding whether the new evidence would probably produce an acquittal. In this case, the d.ct. properly denied the motion on the grounds that it disbelieved the inmates who testified the government's inmate witnesses conspired to testify falsely.
There was sufficient evidence the defendant participated in a conspiracy to use her residence for drug-trafficking, despite the lack of evidence of her direct participation, where firearms, large quantities of cash and cocaine and marijuana, were found in parts of her house that she probably used (e.g. the kitchen and the closet where she kept her clothing); a number of witnesses testified about drug transactions with the co-defendant, (her significant other), at her house and the defendant received money on a regular basis from the co-defendant. The jury could also logically convict the defendant of maintaining a residence and acquit her of possessing drugs on the date of the search of her residence. The jury could buy her testimony that she was staying with friends at that time, but still conclude she made the residence available to the co-defendant for drug-trafficking purposes. There was also sufficient evidence to convict the co-defendant of possession of the drugs found in the house where he had a long-term intimate relationship with the defendant and stayed at the house on a regular basis, his personal items (clothes, etc.) were found in the house and witnesses testified to his distribution of drugs to them. There was sufficient evidence the co-defendant possessed firearms in furtherance of drug trafficking where the guns were loaded, easily accessible, just down the hallway from the drug transactions in the kitchen and not apparently used for sporting purposes. The indictment was not multiplicitous because conspiracy and maintaining convictions were separate offenses.
The 10th also took a stand against consideration of the unfair cocaine powder vs. crack cocaine sentencing disparity. The 10th expressed agreement with those cases that refused to find a guideline sentence unreasonable for a refusal to deviate from the guideline range based on that disparity (an issue presented in this case) and those two circuits that have held it was improper to go below the range due to that disparity (an issue not presented in this case).
U.S. v. Serna-Valdiviezo, 2006 WL 2328745 (8/11/06)(unpub'd) - Victory by Shari and Dennis applying Terry's and Joe's victory in Sanchez-Juarez, 446 F.3d 1109. The defendant presented a non-frivolous argument for a below-range sentence (prior alien smuggling conviction wasn't so serious) and therefore the d.ct. erred when it didn't explicitly consider the § 3553(a) factors.
U.S. v. Lopez-Camas, 2006 WL 2171491 (8/3/06)(unpub'd) - The 10th explains why it applied a reasonableness review regarding the sentencing methodology in Sanchez-Juarez, but a plain error review of the sentencing methodology in Lopez-Flores, 444 F.3d 1218, even though in both cases the defendants did not object to the methodology. In this case, the defendant requested a reduction in the criminal history category based on over-representation. Because the defendant did not mention in the d.ct. reasonableness or the § 3553(a) factors, plain error review applied to the question whether the d.ct. inadequately explained its reasons for its sentence.
U.S. v. Terrell, 2006 WL 2328747 (8/11/06)(unpub'd) - A frightening decision on the right to counsel. An officer on a federal DEA task force did not violate the defendant's Sixth Amendment right to counsel where the defendant was appointed counsel on a state charge of possessing cocaine because the officer asked questions about a conspiracy to possess that cocaine, not just the possession of that cocaine (!!!). The defendant's statements may not be admissible in state court, but his Sixth Amendment rights were not violated in this federal case.
U.S. v. Dallah, 2006 WL 2294848 (8/10/06)(unpub'd) - Another example of the 10th's willingness to go along with upward variances from the guideline range. In this international kidnapping case, it was reasonable to impose the statutory maximum sentence on the ground that the defendant intended to continue to avoid the state child custody order.
U.S. v. Johnson, 2006 WL 2328750 (8/11/06)(unpub'd) - Another such very scary example where the d.ct. imposed 4 consecutive 24 month sentences [96 months total!!!] for violating supervised release conditions.
U.S. v. Henderson, 2006 WL 2171521 (8/3/06)(unpub'd) - The defendant did not have standing to protest a search of an outbuilding where he was staying overnight because he was merely present with the householder's permission, not an overnight houseguest present by invitation [is that clear?].
U.S. v. Christian, 2006 WL 2328749 (8/11/06)(unpub'd) - The officers had probable cause to arrest the defendant for interference with officers because he refused requests to leave an area where the officers were dealing with other people, even though the defendant never stepped between the officers and those people.
U.S. v. Brown, 2006 WL 2259290 (8/8/06)(unpub'd) - The 10th distinguished cases where courts held consents to search to be involuntary where a large number of officers encountered an occupant of a home in the early morning hours. Unlike in those cases, in this case, the consenter was awake at 3:15 a.m.
U.S. v. Thomas, 2006 WL 2171509 (8/3/06)(unpub'd) - The 10th suggests the prosecutor's cross-examination of a defense witness about her not speaking up about the defendant's alibi at his detention hearing that she attended may have been improper under 403, since it wasn't relevant. But, it's harmless.
U.S. v. Nelson, 2006 WL 2259364 (8/8/06)(unpub'd) - The d.ct. abused its discretion in denying the defendant's motion for return of property where the government was retaining property that would not be necessary for any potential resentencing.
Preble v. Estep, 2006 WL 2212686 (8/4/06)(unpub'd) - The 2254 petitioner did not meet the stringent AEDPA standard of review where he was disciplined in prison solely based on information from a confidential informant ("CI") without additional evidence establishing the CI's reliability. The 10th acknowledged that some circuits have held such an occurrence violated due process, but denied relief because the S.Ct. had never so held.
Martinez v. Martinez, 2006 WL 2076792 (7/27/06)(unpub'd) - Footnote in a 1983 case: "It is said that you catch more flies with honey than with vinegar, and Mr. Martinez seems to have taken this saying to heart. Affixed to Exhibit 12 of his federal complaint is the top of a container of grape jelly. Grateful as we are that Mr. Martinez submitted jelly rather than vinegar, we are unswayed by this evidence and consider only the more usual submissions."
Whitehead v. Unknown Agency, 2006 WL 224456 (8/7/06)(unpub'd) - The 10th upholds the d.ct.'s refusal to grant the plaintiff's request for an injunction to stop the voices in his head.
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