Tuesday, October 24, 2006

Search and Seizure from the Defense Perspective

From the Oregon Federal Public Defender available at http://circuit9.blogspot.com/2006/09/search-and-seizure-update.html

The outline covers federal search and seizure cases from a defense perspective. It sets out the general state of the law and, through counterpoints to the cases restricting Fourth Amendment rights, keeps track of cases in which defendants have succeeded in suppressing evidence based on creative use of facts and law. The outline provides a starting place for research, a repository for cases that frequently are useful, and an optimistic approach to Fourth Amendment issues.

Search and Seizure from the Defense Perspective

From the Oregon Federal Public Defender available at http://circuit9.blogspot.com/2006/09/search-and-seizure-update.html

The outline covers federal search and seizure cases from a defense perspective. It sets out the general state of the law and, through counterpoints to the cases restricting Fourth Amendment rights, keeps track of cases in which defendants have succeeded in suppressing evidence based on creative use of facts and law. The outline provides a starting place for research, a repository for cases that frequently are useful, and an optimistic approach to Fourth Amendment issues.

Thursday, October 19, 2006

Habeas petition granted on Confrontation issue!

Stevens v. Ortiz, --- F.3d ----, 2006 WL 2962796 (10th Cir. October 18, 2006)

Over Plaintiff’s objection, the Colorado trial court allowed into evidence against Plaintiff, being tried on Murder 1, an in-custody confession by an accomplice that the accomplice had done the killing at Plaintiff’s direction. That accomplice did not testify at trial. The CO court admitted the statement under R. 804(b)(3)–hearsay that is not excluded because contrary to the declarant’s penal interest. It was the only direct evidence of P’s involvement. The jury convicted Plaintiff, and the CO S.Ct. upheld the conviction because, while the statement did not fall within a firmly rooted hearsay exception, it was admissible because it contained “sufficient guarantees of trustworthiness.”

The federal district court did a not particularly better job. Applying de novo review (it found the CO decision clearly contrary to est. federal law), it STILL found no confrontation problem: the accomplice’s statement was reliable. It was truly self-inculpatory, detailed, not offered in exchange for leniency, based upon his personal knowledge of the events, was not given in retaliation against Plaintiff and given when the accomplice was mentally and physically stable.

The 10th did not apply Crawford, because it was not law at the time the CO court ruled, and Crawford is not retroactive (but did call on Crawford to point out how difficult the “particular guarantees of trustworthiness” standard was).

The 10th easily dispatched the CO decision as clearly contrary to established federal law: the CO court incorrectly determined trustworthiness by looking to other evidence that corroborated the confession, by looking to the voluntariness of the confession; by looking to how self-inculpatory the confession was (S. Ct. precedent rejects this ground when the same confession inculpates another–NOT a firmly rooted exception); absence of a promise of leniency.

Applying de novo review, the 10th finds factors which undermined any determination that the accomplice’s confession was reliable: most importantly, it was made while he was in custody; he constantly minimized his own role and shifted major blame to Plaintiff; he initially, in the first two-thirds of the confession, did totally exculpate himself before confessing; leniency was promised to his girlfriend; the manner of the police interrogation.

Section 1983 Plaintiff Gets Partial Relief, Remand on Two Issues

Trujillo v. Williams, --- F.3d ----, 2006 WL 2949135 (October 17, 2006)

Jesse Trujillo, a former habeas client of the office, was transferred under the interstate corrections compact (ICC) from NMSP to a Virginia state prison in 2002. He remained in administrative segregation for over two years, constantly administratively challenging the process, of lack of it, by which he was deemed a danger, before pro se filing a Sec. 1983 action in NM federal court against Virginia and New Mexico prison officials claiming equal protection, due process, Eighth Amendment, and access to the court violations. (The 10th’s opinion, by Ebel, throughout is peppered with references to liberally construing a pro se pleading).

1. The 10th agreed with the district court that it had no in personam jurisdiction over the Virginia defendants, but reversed the district court’s dismissal without prejudice as an abuse of discretion and remanded so that the district court could order that the action against the Virginia defendants be transferred to the proper Virginia district court. 28 USC Sec. 1631, and 10th Cir. precedent construing it, require transfer rather than dismissal, when in the interest of justice, to cure the lack of jurisdiction.

2. The 10th affirmed the district court’s dismissal with prejudice the monetary damages action (P asked for $100/day for every day held without process) against NM defendants in their official capacity, as barred by sovereign immunity (and nothing in the ICC waived SI).

3. The 10th reversed the district court’s dismissal of the 14th Amendment due process claim against NM officials in their individual capacities regarding his classification into segregation, and remanded for an evidentiary hearing. It noted that while generally there is no constitutional right to a particular classification, when the P alleges that his confinement and classification are atypical and significant when compared to conditions imposed on other prisoners, he has stated a claim. The 10th upheld dismissal of Plaintiff's eighth amendment claim.

4. The 10th reversed district court’s dismissal of Plaintiff’s access to courts claim, stating that the district court misconstrued the Plaintiff’s claim (a kind way to put it). Rather, Plaintiff alleged that when requesting legal materials, “he is expected to know exactly what he needs without any knowledge of what materials might be available to him. This second allegation-an ‘exact cite’ system-may state a viable claim of denial of access to the courts.” Plaintiff also identified an actual alleged injury as a result.

5. Remand allowed for Plaintiff to amend his Equal Protection challenge.

Tuesday, October 17, 2006

Links to Useful Newsletters

The Federal Defenders for the Northern District of New York have a useful website with, among other things, links to a number of defense-oriented newsletters.

Monday, October 16, 2006

Trial Conviction Reversed Because Court Should Have Recused Itself

U.S. v. Franco-Guillen, 2006 WL 2879063 (10/11/06)(unpub'd) - A Kansas judge who apparently has been a visiting judge in Las Cruces [court to defendant: "You have more aliases than I've seen anybody have except one individual down in Las Cruces, NM."], said the following, while setting aside plea agreement when the defendant complained about how high the PSR calculated his guideline range: "I will not put up with this from these Hispanics or anybody else, any other defendants ... I've got another case involving a Hispanic defendant who came in here and told me that he understood what was going on and that everything was fine and now I've got a 2255 from him saying he can't speak English. And he is lying because he told me he could." The 10th vacates the defendant's jury trial conviction, ruling the court should have recused itself from presiding over the case under 28 U.S.C. § 455(a), because a reasonable person would harbor doubts about the judge's impartiality. The 10th raves about how great it was that the government conceded error.

Motion to Amend Habeas Petition Considered to be a Successive Petition

U.S. v. Nelson, 2006 WL 2848113 (10/6/06) - Habeas petitioner's motion to amend petition after his initial petition was denied was actually a successive petition subject to the impossible-to-meet successive petition standards. The 10th must look beyond the title of the motion to its substance, which was to add substantive claims the petitioner had not raised initially.

Tenth Reaffirms Upward Departure for Defendant Convicted of Assault While DUI

U.S. v. Pettigrew, 10th Cir. No. 05-2187, previously 455 F.3d 1164 (amended 10/12/06) - Following a petition for rehearing, the 10th has clarified why the defendant and other defendants who are convicted of assault while driving drunk get upward departures. The 10th previously said the defendant's excessive recklessness warranted an upward departure because it was a culpable mental state. In response to the valid point that excessive recklessness was not a more culpable mental state than that of most assault defendants who intentionally harm someone, the 10th now says the departure was warranted because, unlike other assault defendants, the defendant's excessive recklessness endangered other people. The 10th ignored the fact the trial judge never mentioned the danger to other people as a ground for departure.

Tuesday, October 10, 2006

Objection to Taking Deposition Does Not Preserve Objection to Using Deposition at Trial

U.S. v. Martinez, 2006 WL 2821357 (10/4/06)(unpub'd) - A pro se defendant prompted a 21 page decision. Among other things, the 10th rules that a prisoner's oral representations to a caseworker, even if transmitted to the U.S. Marshall, do not begin the IADA clock. The 10th also finds it was okay to notice the defendant at 3:30 p.m. for a pretrial deposition held the next morning. And, in a preservation lesson to us all, the pro se defendant does not prevail on his appellate complaint about the introduction of the deposition at trial because below he only objected to the taking of the deposition, not its admission at trial.

Reentry Defendant Failed to Rebut Presumption of Reasonableness for Enhancement

U.S. v. Caballero-Robles, 2006 WL 2811293 (10/3/06)(unpub'd) - The reentry defendant did not rebut the presumption of reasonableness of his within-guideline-range sentence by his contention that his prior sexual abuse of a minor conviction that increased his offense level by 16 involved a consensual relationship and that the Mexican culture allows sexual relations with 13 year-old post-pubescent girls.

Guideline Sentence Reasonable; District Court Adequately Explained Reasons

U.S. v. Velasquez, 2006 WL 2811299 (10/3/06)(unpub'd) - The 10th finds the court sufficiently explained the reasons for the sentence in a meth case by listening to the defendant's arguments, saying he considered the § 3553(a) factors and making certain caustic comments during the sentencing hearing, including that he had never tried to impress his wives with his wealth and influence. The 10th held the sentence was reasonable, despite the defendant's assertion the extent of his involvement was exaggerated because he was trying to impress his wife.

12-Level Enhancement for Texas Delivery of a Controlled Substance Affirmed

U.S. v. Nava-Zamora, 2006 WL 2848085 (10/6/06)(unpub'd) - A Texas conviction for delivery of a controlled substance merited a 12 offense level enhancement in a reentry case, even though the state judge reduced the punishment to a misdemeanor sentence, because the defendant was convicted of a felony offense punishable by more than one year.

Detention of Defendant While Gov't Appeals Suppression Order Upheld

U.S. v. Cos, 2006 WL 2821376 (10/4/06)(unpub'd) - While ignoring all but one of the defendant's arguments, the 10th upholds the court's order detaining the defendant while the government appeals the defendant's great suppression victory. The 10th says it's okay to downplay the significance of the fact that the district court had suppressed all the government's evidence against the defendant in deciding whether to detain him. On the good side, the 10th acknowledges that a prolonged detention, in this case more than 15 months, must be subjected to more careful scrutiny than when the initial detention decision is made, given due process considerations. The 10th remands the case to the d.ct. to conduct the due process analysis it failed to conduct.

Two Threats to Same Victim Should Not Have Been Grouped

U.S. v. Chapple, 2006 WL 2848088 (10/6/06)(unpub'd) - The 10th reverses for a plain error in sentencing. It was error to consider two threats to the same victim as separate offenses for grouping purposes. The defendant sent two envelopes at different times with harmless white powder to scare a woman he was stalking. The grouping rules of § 3D1.2(b) (re: grouping counts involving the same victim or same scheme) applied. § 3D1.2(d) excludes the relevant offense guideline from its grouping rule, but not from grouping under (b). Even though more than one person was affected by the threat because someone else opened one of the envelopes, the offenses should be considered as involving only one victim, since only one person was the intended victim. The error affected the defendant's substantial rights and seriously affected the fairness of the proceedings (the 3rd and 4th prongs of the plain error test) because the top of the new guideline range was below the sentence actually imposed.

Tuesday, October 03, 2006

10th Circuit Lays Out Procedure for Dealing with Rule 60(b) Motions in Habeas Cases

Spitznas v. Boone, 2006 WL 2789868 (9/29/06) - Big news in the habeas world, [not to be confused with the real world]. The 10th decides how to deal with Rule 60(b) motions (i.e., motions filed to reopen final habeas decisions), in light of the S.Ct.'s rejection in Gonzales v. Crosby, 125 S.Ct. 2641 (2005), of the 10th's prior rule to consider every 60(b) motion to be a successive petition. A district court should assess each 60(b) claim to see if it (1) asserts or reasserts a basis for habeas relief, (which makes it a successive claim) or (2) challenges a procedural ruling, (e.g. statute of limitations), or defect in the integrity of the prior federal habeas proceeding that does not inextricably lead to a merits-based attack on the prior disposition, (which makes it a "true" 60(b) claim). The d.ct. should decide for itself a true 60(b) claim and send a successive claim to the 10th to exercise its gatekeeping function to reject every successive claim under the ridiculously stringent successive petition standards of 28 U.S.C. § 2244(b). The 10th rejected the holdings of a couple of circuit courts that a petitioner could not mix a 60(b) motion with successive and true 60(b) claims. It's okay, the 10th says, for the d.ct. to divide up the claims on its own and decide some and transfer others to the 10th. A certificate of appealability ("COA") is required to appeal the denial of a true 60(b) motion. No COA is required for a transfer to the 10th for a successive petition determination.

In this case, the petitioner's complaint that the d.ct. had failed to rule on one of his claims was a procedural claim that constituted a true 60(b) claim. The 10th remanded for the d.ct. to decide if the prior habeas denial should be vacated under 60(b) and, if so, whether habeas relief was warranted. The petitioner's other claim was a new substantive claim based on new facts and, thus, constituted a successive claim. The petitioner did not meet the successive petition standard for relief because the petitioner could have discovered the "new" facts by the time he filed his initial habeas petition.

Burden Essentially on Defendant to Disprove Prior Convictions

U.S. v. Martinez-Jimenez, 2006 WL 2789865 (9/29/06) - A helpful appellate procedural ruling, but a continuation of the 10th's less than vigilant review of the government's burden to prove convictions. The 10th held that it had to decide whether a criminal history point should have been assessed, even though the resultant criminal history category reduction would still yield a guideline range that included the defendant's sentence and the d.ct. imposed pre-Booker an identical alternative sentence. It was not clear the d.ct. would have imposed the same sentence if the guideline range was lower. But, the government had sufficiently proven the existence of a prior conviction by producing the NCIC record and a letter from the state court confirming the information in the NCIC with respect to one of the defendant's aliases. The government produced no judgment. The 10th strongly hinted that just the NCIC itself, (which is based on fingerprints, the 10th pointed out), was enough to meet the government's burden. Typically, the 10th stressed the defendant did not argue she was not the person to whom the documents referred, she did not introduce any evidence she had not been convicted of the crime in question and she did not attack the reliability of the letter or the NCIC reports. In this way, the burden in reality shifts to the defendant.