Thursday, September 28, 2006

Pre-Booker Sentence Affirmed Because Court Imposed Identical Alternative Sentence; Abstracts and Uncertified Docs Suffice to Prove Priors

U.S. v. Zuniga-Chavez, --- F.3d ----, 2006 WL 2753852 (10th Cir. September 27, 2006)

This took a long time to decide; briefed before Booker.

District court’s non-constitutional Booker error was harmless in spite of sentencing D at the low end of the guideline range; the court explicitly imposed an alternative sentence (equal to the low end of the GL range) as the sentence it would impose should the GL be found unconstitutional. Moreover, court carefully considered the GL , sentencing materials and argument, and its failure to state it had considered §3553(a) factors not error.

The 10th rejected D’s argument that the district court erred in relying on evidence of Defendant's five prior California state convictions as demonstrated by a certified docket sheet, a certified copy of an “abstract judgment,” and court case summaries, to raise Defendant's offense level and criminal history. D argued that these were insufficiently reliable under Shepherd.

The 10th said they were sufficiently reliable to support the FACT of prior conviction. The 10th distinguishes Shepherd, which dealt with a prior conviction under a broad or ambiguous statute which contains elements which do and which do not support designation of the prior conviction as, for example, an aggravated felony. Shepherd requires reliable documents which show the elements for which the D was found guilty: jury instructions, or bench trial findings and rulings, or (in a pleaded case) the defendant's own admissions or accepted findings of fact confirming the factual basis for a valid plea.

NM Truck Inspection Scheme at POE OK under NY v. Burger

U.S. v. Gwathney, --- F.3d ----, 2006 WL 2734108 (10th Cir. September 26, 2006)

D’s commercial truck was subjected to a regulatory search at the Gallup port of entry, and the inspector found 152 kilos of marijuana. Also, the inspector discovered that D had a few days earlier paid $14,000 cash to repair his vehicle.

1. Applying N.Y. v. Burger, 482 U.S. 691 (1987) and Vasquez-Castillo, 258 F.3d 1207 (10th Cir.2001), the 10th finds that the NM regulatory scheme allows warrantless entry into a commercial trailer to inspect the cargo without violating the constitution. Once the inspector legitimately was inside the trailer, under the facts of the case, he had probable cause to inspect non-conforming boxes (D was hauling potatoes; boxes at the back of the trailer were different from the potato boxes).
2. District court (Johnson) erroneously admitted Western Union statement that it had no record of a money transfer from the boss to D, which was prepared in response to a government subpoena for that evidence. (The WU statement was part of Gov. Ex. 55 which also included the government subpoena. Johnson “reasoned” that although the WU statement was not part of WU’s business records, the subpoena was part of the government’s business records and the response from WU also then became a part of the government’s business records and because the whole thing was one exhibit, it came in!!!!). The 10th says that the WU document is separate and was hearsay. Even if it was a business record, which the 10th doubted, the government witness, a DEA agent, could not lay a foundation for its admission. BUT the error was harmless. The fact that boss did or did not wire D money to repair the truck had little to no bearing on whether D knew the truck contained marijuana (his defense). See the court’s somewhat tortured analysis.
3. No 6A violation for the court to give the jury a “permissive inference” of knowledge instruction: there was a rational connection between the facts proved by the prosecution (D’s sole custody and control of truck at time of loading, load was not sealed by packers; evidence that someone had walked over boxes of potatoes to get to boxed marijuana in the back) and the ultimate fact presumed.
4. D, who moved for a new trial for newly discovered evidence–a receipt from WU that there HAD been a money transfer from boss to him for $930, contrary to Ex. 55 above–failed to meet the new trial standard. The failure to discover it was due to his lack of diligence since he was the recipient of the transfer. Additionally, it was merely impeaching. And finally, akin to the 10th’s ruling regarding admission of the WU statement, it was not material.

Tuesday, September 26, 2006

Extension of Time to File Notice of Appeal Not Justified by Counsel's Workload

U.S. v. Mitchell, 2006 WL 2709635 (9/22/2006) - Counsel's heavy workload and involvement in a trial never constitute excusable neglect to warrant the extension of time to file a late notice of appeal. The 4 factors to be considered in deciding whether to grant an extension motion---prejudice to the other party, length of delay, the good faith of the movant and the reason for the delay are not given equal weight. The reason for the delay is by far the most important factor. Although three factors weighed in favor of the extension, the reason for the delay did not. The 10th reverses the granting of the extension.

Counts from Separate Indictments Properly Grouped for Sentencing

U.S. v. Herula, 2006 WL 2699036 (9/21/06) - The d.ct. correctly grouped counts from different indictments (regarding offenses in different states) where the d.ct. imposed sentences for both indictments at the same time. Application note 1 of USSG 5G1.2 relating to sentencing on multiple counts must be considered in grouping under USSG § 3D. In this case the application note requires grouping of multiple counts in different indictments when the sentences are imposed at the same time. The fact that the parties did not anticipate the grouping, as evidenced by the non-binding stipulations in the plea agreement, did not render the resulting sentence unreasonable. The parties' expectations do not overcome the presumption of reasonableness accorded the guidelines. The sentence imposed under Booker did not violate the Ex Post Facto Clause because Booker was not applied retroactively and the record does not reflect that the defendant would have been sentenced any differently under the pre-Booker mandatory guideline system.

Jury Foreman's Failure to Disclose Involvement in Criminal Matters Not Reversible Error

U.S. v. McConnel, -- F.3d --, 2006 WL 2723420 (10th Cir. 9/25/06) - defendant was properly denied a new trial based on jury foreman's failure to respond to voir dire question about previous involvement in criminal matters. The juror had been charged in a state case and the charges were later dismissed without a trial. The district court's finding that the juror was mistaken, but not dishonest, in failing to respond was not clearly erroneous. Implied bias was not established and the defendant did not argue actual bias.
Deliberate ignorance instruction, not objected to at trial, was improper, but the plain error was unmet because the error did not seriously affect the fairness of the trial.
Defendant waived issue re: impeachment with two prior misdemeanor convictions by introducing the evidence himself after the district court ruled the gov't could use it.
Two constitutional Booker errors were harmless in view of the court's exercise of pre-Booker discretion to impose the highest possible sentence.

Useful Newsletters

The Federal Defenders Office of the Northern District of New York has a number of useful newsletters available, including the very useful Errores Juris 2005 (formerly Reversible Errors).

Thursday, September 21, 2006

Tenth Goes With Principle that "Suppression of Evidence" Should Be a "Last Resort"

U.S. v. Sells, --- F.3d ----, 2006 WL 2678015 (10th Cir. September 19, 2006)

Issue: severability of terms in a search warrant. D alleged that the warrant to search his home for firearms was constitutionally over-broad and that police conducted a general search. (Someone had shot into D’s parents’ home. Parents suspected D because of recent threats and D’s possession of many guns. Police surveillance showed D arriving home one evening with, among other things, a flak jacket and an assault rifle).

In the opinion, the 10th picks out and elevates some frighteningly bad language from the Supreme Court’s last term: “The Supreme Court has recently reiterated, however, that “suppression of evidence” should be a “last resort, not [a] first impulse.” Hudson v. Michigan, 126 S.Ct. 2159, 2163 (2006).” Help Mister Wizard!

The court goes on to apply the “severance doctrine”, where valid portions of a warrant are severed from the invalid portions and only materials seized under the authority of the valid portions, or lawfully seized while executing the valid portions, are held admissible. It first divides the warrant into individual categories of items. It next determines if a part of the warrant describes with sufficient particularity items to be seized for which there is probable cause (if no part of the warrant passes this inquiry then the entire warrant is invalid). The parties agreed on validity and invalidity of 4 portions of the warrant. The 10th, applying the next part of the test, determined that the valid portions were sufficiently distinguishable from the invalid portions. It next determined that the invalid portions did not so predominate in the warrant to contaminate the entire warrant and turn the search into an unconstitutional general rummaging.

It was in addressing the 5th catchall portion of the warrant that the 10th pulled a Hudson. The final category of items under the warrant allowed a search for “any other related fruits, instrumentalities and evidence of the crime.” The 10th identified this as having some characteristics of both a valid warrant provision and one that is too broad. It read the word “related” as referring more to the valid portions of the warrant (specifying a search for a .233 firearm and .233 ammo) than to the invalid portions. Hence, the valid portions of the warrant, severed, allowed the police to search for and seize all the guns, the pipe bomb and ammo they found (some were in plain view).

10th also upheld district court determination that police did not flagrantly disregard the warrant and use it for a general, rummaging search.

Tuesday, September 19, 2006

Unpublished Decisions Address Reentry Defendants, Appeal Waiver, Actual Innocence

U.S. v. Tapia-Leon, 2006 WL 2522468 (9/1/06)(unpub'd) - Reentry defendants get the § 2L1.2 16-level increase for a prior alien smuggling conviction, whether or not the conviction involved clandestine movement or concealment.

U.S. v. Ramirez-Jimenez, 2006 WL 2522484 (9/1/06)(unpub'd) - The 10th agrees with other circuit decisions that it's permissible double counting to enhance a reentry defendant's sentence twice for the same conviction with respect to the criminal history score and the offense level. The 10th still has not issued a published decision to that effect.

Garcia-Ortiz v. Gonzales, 2006 WL 2556364 (9/6/06)(unpub'd) - The 10th refuses to apply the holding in INS v. St. Cyr, 533 U.S. 289 (2001) to aliens who went to trial. In St. Cyr, the S.Ct. held that the 1996 change in the definition of aggravated felonies did not apply for discretionary suspension of deportation purposes to those who pled guilty before 1996 to an offense that was not an aggravated felony at the time. The logic of St. Cyr did not apply to those who went to trial because they did not go to trial in objective reliance on the pre-1996 aggravated felony definition. The distinction between those who pleaded guilty and those who went to trial does not violate the equal protection clause because the distinction is rational.

U.S. v. Sarber, 2006 WL 2640556 (9/14/06)(unpub'd) - An appeal waiver is unenforceable only when there is a miscarriage of justice with respect to the appeal waiver itself. The waiver is enforceable no matter how unjust the sentence or sentencing procedure was.

Rose v. Newton-Embry, 2006 WL 2536601 (9/5/06)(unpub'd) - The 10th seems to accept the notion that actual innocence will trump the habeas statute of limitations. But, here mere impeachment evidence did not meet the high actual innocence standard.

Davis v. EPA, 2006 WL 2556369 (9/6/06)(unpub'd) - The 10th allows prisoner to pursue citizen lawsuit regarding the contamination of a superfund site.

Mitchell v. City of Colorado Springs, 2006 WL 2536600 (9/5/06)(unpub'd) & Chavez v. Huerfano County, 2006 WL 2522486 (9/1/06)(unpub'd) - The 10th affirms two dismissals of prisoner complaints for failing to abide by the d.ct. order to make their lengthy, rambling complaints more understandable. A trend?

40-minute Detention OK for Traffic Stop

U.S. v. Douglas, 2006 WL 2642129 (9/15/06)(unpub'd) - The 40 minutes it took to verify the validity of the defendant's license was okay, even though the delay was caused by the dispatch people looking for his license in the state of Washington, rather than the Washington, D.C., database. During that extra time, the officer developed reasonable suspicion to detain (including based on the defendant's increasingly confrontational manner). The 10th seemed untroubled by the officer's testimony that he almost always detains people in order to use a drug dog whenever they refuse consent to search.

Felony DUI Held to be a Predicate ACCA Offense

U.S. v. Gwartney, 2006 WL 2640616 (9/14/06)(unpub'd) - The 10th holds felony driving while intoxicated is a predicate felony for ACCA purposes. The 10th relies on the defendant's concession that its decision in U.S. v. Moore, 420 F.3d 1218 (10th Cir. 2005), controls. In Moore, in addressing identical language, the 10th found DWI to be a crime of violence for career offender purposes.

Some of Prisoner's Civil Rights Claims Based on Inadequate Medical Assistance Reinstated

Kikumura v. Osagie, 2006 WL 2578805 (9/8/06) - The 10th reverses dismissal of some of the prisoner's civil rights claims where prisoner alleged medical personnel and guards ignored his expressed agony for hours when he was actually suffering from a very serious, potentially fatal, illness.

On Rehearing, Tenth Again Rejects IAC Claim But On More Nuanced Grounds

U.S. v. Flowers, 2006 WL 2604607 (9/12/06, 3/22/06) - As you no doubt recall, this case was decided 6 months ago. However, the defendant's rehearing petition prompted the court to more thoughtfully consider the defendant's ineffective assistance-§ 851(a) notice claim before rejecting it once again. The defendant asserted his counsel unreasonably failed to object to the government's improper service of the notice of an § 851(a) enhancement (prior drug felony conviction). Contrary to its initial holding, the 10th holds this time that faxing the notice was not proper notice since the defendant did not consent to fax service, as required by Fed. R. Civ. P. 5(b)(2)(D), which is applicable to criminal cases by virtue of Fed. R. Crim. P. 49(b). Strict compliance with § 851 is required. But, counsel did not act unreasonably in failing to raise the invalid service question because counsel could have legitimately believed doing so at the plea hearing stage would only result in a continuance and proper service. Doing so later would violate the plea agreement, since acknowledging the prior conviction and its effect on sentencing was part of the plea agreement. It would not have resulted in a dismissal of the enhancement.

Defendant Passenger Unlawfully Detained Even Though Driver Free to Go

U.S. v. Guerrero-Espinoza, 2006 WL 2642135 (9/15/06) - A great case for passengers at a traffic stop. The defendant passenger was not engaged in a consensual encounter (with Wyoming police officer Peech) but instead reasonably believed he was not free to go, even though the driver could reasonably believe he was free to go and even though the officer returned the car documents to the defendant, who was the van's owner. The record contained no evidence the passenger knew the officer had indicated to the driver that the traffic stop was over. The driver was still standing at the back of the van while Peech questioned the defendant. The defendant would reasonably believe he was not free to go because there was still a question about the insurance coverage on his van and, as far as he knew, the officer was still detaining the driver. Because the officer had declared the stop over and thus the purposes of the stop were completed and the government did not argue there was reasonable suspicion, the extended detention violated the Fourth Amendment and tainted the defendant's consent to search. Judge Tymkovich dissented on the grounds that it didn't matter whether the passenger felt free to go. The 10th had established a bright-line rule that once documents are returned any ensuing encounter with the officer is presumptively consensual.

Thursday, September 14, 2006

Evidence Insufficient to Support Retaliation Conviction

Torres v. Lytle, --- F.3d ----, 2006 WL 2604610 (10th Cir. Sept. 12, 2006)
Mr. Torres gets relief on his habeas petition.

Issue: was there sufficient evidence at the state trial to prove that P's threatening letter to V was in retaliation for V's giving information to authorities that P committed a felony arson? Answer: No.

P had been allegedly involved in two arsons in relation to V: an earlier felony arson, and a later misdemeanor arson. P was tried on the misdemeanor arson and after the misdemeanor trial, P wrote the threatening letter. At P’s subsequent trial for retaliation against a witness (the subject of this habeas case), the state presented no evidence that P had any knowledge that V had reported the earlier felony arson to authorities (reporting a felony was an element of the retaliation charge). The NM Ct. App. summarily upheld P’s conviction on P’s sufficiency of the evidence challenge.

The 10th first noted that the issue of sufficient evidence is primarily legal and the AEDPA standard of deference forbids the federal court from granting relief unless the state appellate court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” HOWEVER, in this case, and for you habe-o-philes out there, this is part of where Chuck’s and Susan’s victory lies: if the federal court must consider any additional material facts from the trial transcript that were not placed before the state appellate court, then the federal court “should not defer” to the state court decision. Because the NM Ct. App. only did a summary calendar review and did not review the entire trial transcript in this case, the feds were not required to (and would not be allowed to) defer to the state decision.

HOWEVER, this opinion is authored by Hartz. He did not criticize the NM state calendaring system AND he decided that the trial transcript did not add anything to the P’s state court docketing statement SO the 10th could and did give deference to the state court decision after all.

Still with me?

Even under AEDPA deference, however, the evidence was insufficient. The 10th squeezed the facts to find evidence of a link between P’s writing of the threatening letter and his knowledge that V reported a felony arson and could not find it. Hence, victory!

10th Cir. Unpublished Cases

Boles v. Dansdill, 2006 WL 2615522 (10th Cir. Sept. 13, 2006)

In pro se prison conditions case, 10th acknowledges P did all he could to exhaust his administrative remedies (against the tide of a slow moving, unresponsive and even obstructionist administration) and reverses the district court’s dismissal of his suit.

U.S. v. Wilson, 2006 WL 2615509 (10th Cir. Sept. 13, 2006)

Although indictment erroneously did not charge the amount of drugs that would have exposed D to a sentence up to the 30 year statutory maximum, because he “admitted” that he had 10 grams of crack cocaine, he laid a factual basis for the court to sentence him to 30 years and any error was harmless. (Problem is the admission, by D’s attorney, was more in the way of distinguishing the count he was pleading guilty to from the cou