Thursday, November 30, 2006

Life Sentence, Convictions Affirmed in Drug and Firearms Case

U.S. v. Portillo-Quezada, ___F.3d___, 2006 WL 3423439 (Nov. 29, 2006)

D was convicted of drug, conspiracy and firearm offenses after trial with two co-defendants. He raised both trial and sentencing errors on appeal.

1. It was invited error to proceed to trial after two co-Ds appeared for voir dire in prison clothes; court asked if all parties wanted to proceed in light of the fact that the others’ civilian clothes had not yet arrived and all said they did. Additionally, court dispelled any prejudice and determined that the jury was uninfluenced by seeing the co-Ds in prison clothes.

2. Court did not abuse its discretion in denying mistrial motion for prosecutor’s questions on voir dire re: appearance of criminals. While prosecutor’s remarks appealing to stereotypes were improper, the district court’s curative action, and the fact that the prosecutor’s remarks did not refer to D’s characteristics (though they did to the co-Ds’) did not make the trial unfair to D.

3. Trial court ruling under 404(b) admitting evidence that D was involved in the uncharged murder of another as intrinsic to the conspiracy, was not an abuse of discretion. It linked co-D co-conspirators into the conspiracy and was evidence of the conspiracy itself (murder victim was a co-conspirator). Moreover, while graphic, the evidence was not unduly prejudicial.

4. D was sentenced under the murder enhancement guidelines to life. There was no Ex Post Facto violation in sentencing him under post-Booker advisory guideline when his offense was committed pre-Booker and he might have received a sentence lower than the statutory maximum pre-Booker. Sentence was reasoned and reasonable.

Not Unreasonable for Colo. Court to Vacate Manslaughter and Affirm 1st-degree Murder Conviction On Single Homicide

Jones v. Ortiz, --- F.3d ----, 2006 WL 3411465 (10th Cir. November 28, 2006)

In what seems to be an unhappy text book reading of proof on greater and lesser offenses, the 10th denied a certificate of appealability on P’s 2254 petition, holding it was not contrary to nor an unreasonable application of clearly established federal law for the Colorado court, faced with (seemingly inconsistent) jury verdicts finding P guilty of both manslaughter and first degree felony/murder for the same homicide, to vacate the lesser offense conviction and affirm conviction for the greater offense. There was no DP or 6A violations, since the verdict showed that the government did prove, BRD, facts supporting the greater (and the lesser) offenses.

Tuesday, November 28, 2006

Just Don't Ask
The 7th Circuit held that police officers did not neutralize a wife's consent to search the family home by failing to also ask the defendant/husband for his consent before they arrested him and moved him to the squad car. The wife had told officers that defendant had abused her two weeks earlier and that defendant, a felon, had guns and drugs in the home. Although the officers had probable cause to arrest the defendant for the domestic abuse, they decided to get cute and get into the house. At 11 p.m., in a blizzard, the officers went to the house and told the defendant his wife had been in a car accident. He invited them inside while he got dressed. Once inside, the officers arrested the defendant, put him in the patrol car, and proceeded to search. Naturally, guns were found and used to convict him of a firearms offense. The defendant objected to the search, saying he was present and would have objected had he known the officers would toss the house. The Seventh Circuit affirmed the conviction, finding that the Supreme Court's decision in Matlock, rather than Randolph, controlled. It "harmonized" the Georgia v. Randolph, 126 S.Ct. 1515 (2006), and US v. Matlock, 415 US 164 (1974), by emphasizing that there was no evidence that the officers removed the defendant from the scene just so as to avoid a possible objection. US v. DiModica, No. 05-4164 (7th Cir. 11/16/06)

On Booker Remand, No Revisiting The Guidelines in Defendant's Favor
The Fifth Circuit interpreted the Supreme Court's mandate to reconsider a case "in light of United States v. Booker" as in turn restricting its subsequent mandate to the district court for "resentencing in accordance with Booker" in such a way as to prohibit the district court from recalculating the guidelines range to the defendant's advantage on resentencing. The original trial had included a special verdict form in which the jury found a quantity of drugs attributable to the defendant. The district court, of course, calculated the applicable offense level based on relevant conduct, resulting in much greater drug quantities and a higher guideline range. The defendant received a 121 month sentence, which the Fifth affirmed. The Supreme Court then remanded, post-Booker. On remand, a new district court used a guideline range based on the jury's findings and imposed a new sentence of 63 months. If indeed this was the proper guideline range, the Fifth Circuit (with its presumption that guidelines sentences are reasonable) would have had a hard time reversing. Way out of the dilemma: Wrong guideline range! It concluded its mandate was only to resentence the defendant under an advisory guidelines range and not revisit the guidelines calculation, which had not been addressed or vacated on appeal. US v. Pineiro, No. 06-30242 (5th Cir. 11/9/06)

Street Dealer Gets Life
A street dealer convicted of conspiracy to distribute heroin can receive a life sentence based on the aggregate amount of the individual sales. US v. Pressley, No. 05-2487cr(L) (2d Cir. 11/14/06)

Crawford No Bar to Dying Declarations
Dying declarations are admissible despite Crawford, the Nevada Supreme Court held. Although testimonial, they fall into the sui generis exception because they were admissible at the time the Sixth Amendment was adopted, the court reasoned. Harkins v. State, No. 45024 (Nev. 10/12/06)

Batson Challenge Defeated by "I Didn't Know"
"I made a mistake about the juror's race" is a sufficiently race-neutral reason to defeat a Batson challenge, the Sixth Circuit held. The dissenting judge pointed out that the government did not give any reason for striking the jury and that the majority's decision allowed the government to defeat the first prong of a Batson challenge simply by denying that the strike of the juror was racially motivated. US v. Watford, No. 05-6184 (6th Cir. 11/14/06)

No 4th Amendment Violation where Cop Searched Dad's Home
A police officer who visited his parents' home with the intention of confirming or dispelling his suspicion that his father was a bank robber did not violate the father's Fourth Amendment rights because the son was acting as a private citizen who just wanted to keep his dad from getting into deeper trouble. Needless to say, evidence that dad had been making unauthorized bank withdrawals was found. What a great kid. US v. Ginglin, No. 06-1074 (7th Cir. 11/6/06)

Minor Injuries Don't Warrant Enhancement
A minor head injury and a small mouth cut suffered by the assault victim (a prison guard) were too minor to support an offense-level enhancement for serious bodily injury under USSG 1B1.1. The fact that the victim did go the infirmary was downplayed as just standard policy. The term bodily injury is limited to "significant" injuries that are "painful and obvious" or "for which medical attention ordinarily would be sought." US v. Mejia-Canales, No. 05-4218 (10th Cir. 11/8/06)

Mere Presence of Juvenile Not "Use of a Minor"
The fact that the defendant's 17-year-old girlfriend was present when he trafficked in drugs and rode in the car with him when drugs were present was insufficient to support the use of a minor sentencing enhancement under USSG 3B1.4. US v. Molina, No. 05-51470 (5th Cir. 11/6/06)

Gun Possession Defendant's Sentence Properly Enhanced
The offense level of a defendant who pled guilty to possessing a gun while subject to a restraining order was properly enhanced for possessing a firearm in connection with another felony offense (USSG 2K2.1(b)(5)) where he had accepted the gun as collateral for a monetary loan intended to be used to buy drugs to be resold. US v. Gregg, No. 06-1364 (8th Cir. 11/13/06)

Attempted Child Neglect Not a COV
The categorical approach used to determine whether a prior conviction qualifies as a predicate for a recidivist sentencing enhancement does not permit the district court to rely on all the facts alleged in the charging document of the prior conviction where the defendant in fact pled to a lesser charge. The defendant had a prior Tennessee conviction of attempted child neglect; the original charge had been aggravated child neglect and the indictment alleged that the defendant had seriously burned the victim. The district court concluded that this was a predicate felony for USSG 4B1.2 purposes. The problem with the district court's analysis was that allegation of injury to the victim was not necessary to establish the lesser included offense to which the defendant had pled. Since the acceptable records did not indicate that the defendant had admitted to those allegations, the prior conviction had not been proven to be a crime of violence. US v. Armstead, No. 05-6480 (6th Cir. 11/6/06)

Sentencing Manipulation Argument Nixed
The Seventh Circuit rejected a defendant's argument that he was a victim of sentencing manipulation, and made it clear that the defense does not apply in that Circuit. Defendant was a licensed firearms dealer who sold firearms to a felon who was a CI. During the course of the sale, the CI made statements that the guns would be given to drug dealers in exchange for drugs. As a result, the defendant's sentence was increased under USSG 2K2.1(b)(5). Defendant argued that his sentence should not be increased because it was manipulated by the officers. Some circuits have held that a judge may not increase a defendant's sentence based on evidence obtained through outragous government conduct solely for the purpose of increasing the potential sentence. In this case, not only did the 7th Circuit reject the applicability of the concept, it did not find the government's conduct to be outrageous. US v. Wagner, No. 06-1644 (7th Cir. 11/7/06)

Tuesday, November 21, 2006

Disparity, Double-Counting Arguments Rejected in Reentry Cases

U.S. v. Martinez-Trujillo, 10th Cir. No. 05-4122 (12/20/06) - Pursuant to its trend of rigidifying the bottom end of the guidelines and loosening up the top end, the 10th holds that the disparity between the sentences of reentry defendants in non-Fast-Track districts vs. those in Fast-Track districts does not violate 18 U.S.C. § 3553(a)(6)'s prohibition against unwarranted disparity. By authorizing Fast-Track programs, Congress determined the disparities among districts were not unwarranted. The 10th rejected the defendant's argument that he should be able to take advantage of the Fast-Track program because, while his case was on appeal, Utah adopted such a program. The 10th reasoned that, unlike the defendants who would be getting Fast-Track deals, the defendant was able to exercise his right to appeal---[the fact that the 10th rendered that right worthless is beside the point].

U.S. v. Murriega-Santos, 2006 WL 3291683 (11/14/06)(unpub'd) - It is not unreasonable to use the reentry defendant's prior conviction to both increase the criminal history category and impose an 8 offense level enhancement. "It is not our province to second-guess the Sentencing Commission" [except when it might result in a higher sentence].

Thursday, November 16, 2006

Cops' Failure to Follow State Law Immaterial to Federal Suppression Issue; Conclusion Defendant Not a Minor Participant Not Error

U.S. v. Mendoza, --- F.3d ----, 2006 WL 3307267 (10th Cir. November 15, 2006)

1. Immaterial in Defendants’s 4th Amendment motion to suppress evidence that state troopers failed to follow Utah law in obtaining a telephonic warrant for a dog sniff search; 4th Amendment claims are tested against federal law.

Defendant’s (attorney’s) inartful briefing led 10th to decide not to address a more clearly framed oral argument that police did not have reasonable suspicion to detain Defendant while they waited 40 minutes for the arrival of a drug-sniffing dog (Though Defendant was nervous when stopped, gave some answers that seemed unlikely, and had air fresheners in the vehicle, the registration and license all checked out).The issue was arguably a little more clearly framed in the reply brief, but raising an issue in the reply is too late.

Police did not need probable cause to detain Defendant while waiting for the dog, and the 40 minute wait was reasonable under the circumstances. The 40 minute detention was lawful. Finally, once the dog alerted police had probable cause to search the entire vehicle, not just the portion the dog alerted to.

2. Trial court did not abuse its discretion in failing to recuse itself when it had 3 weeks earlier referred Defendant’s counsel to the disciplinary board for misconduct in an unrelated civil case. The court could legitimately determine it had a duty to do so.

3. District court did not err in refusing to give 2 point minor participant reduction under USSG 3B1.2(b). Given the evidence–Defendant had made 3 trips, Defendant was transporting over $1 million street value worth of meth, and Defendant’s recorded jail telephone calls indicated he knew more about the drug transaction than he did–the district court reasonably was not persuaded by Defendant that he was a minor participant.

Patane Prevents Suppression of DNA Evidence

U.S. v. Phillips,--- F.3d ----, 2006 WL 3307270 (10th Cir. November 15, 2006)

Following U.S. v. Patane, 542 U.S. 630 (2004),which holds that evidence that is the fruit of a voluntary statement should not be suppressed even if the statement was elicited without a Miranda warning, the 10th held that physical evidence–results of a DNA swab taken pursuant to a search warrant--obtained as fruit of a voluntary statement by a defendant to a law-enforcement officer (Defendant’s statement linking himself to a robbery was used to support search warrant application) is admissible at trial regardless of whether the officer gave the defendant Miranda warnings. Defendant never argued his statement was involuntary.

"Mother" Plants for Cloning Properly Included As Part of Overall Enterprise

U.S. v. Montgomery, --- F.3d ----, 2006 WL 3291658 (10th Cir. November 14, 2006)

In a case involving 101 marijuana plants, district court’s granting of a judgment of acquittal or in the alternative a new trial on the theory that the government was required to prove an intent to distribute marijuana from each of the plants, was erroneous. The 10th construed the word “involving” in the part of the statute addressing increased penalties for offenses involving 100 or more plants (§ 841(b)(1)(B)(vii) ). It reasoned that the penalties of § 841(b)(1)(B)(vii) are triggered when the predicate violation of § 841(a)(1), has as a part or includes (i.e., “involving”), 100 or more marijuana plants. The 10th distinguished Asch, wherein finite quantities of drugs for personal use are not included in the base amount for the offense under § 841(b)(1). Here, the two “mother plants” kept for cloning, not for distribution, could reasonably have been interpreted by the jury as part of the overall distribution enterprise. Also, because the D never moved for a new trial, the district court lacked authority to grant one. Reversed.

No Qualified Immunity For Officer Who Disclosed Video to Media

Anderson v. Blake, --- F.3d ----, 2006 WL 3291688 (10th Cir. Nov. 14, 2006)

Police officer lost his qualified immunity in civil claim against him that he improperly disclosed video to media of P’s alleged rape. P’s constitutionally protected privacy interest in the tape was clearly established, and the fact that the tape also included evidence of a crime did not deprive P of her privacy interest.

Tuesday, November 07, 2006

Car Search OK; Not Shown It Was Within "Curtilage" of Home

U.S. v. Echeverria, 2006 WL 3190224 (10th Cir. 11/6/06) (unpub) - No warrant was necessary for search of "readily mobile" car parked at home; Mr. Echeverria failed to establish that the car was within the home's curtilage. Info from Mr. Echeverria's wife established pc for the search.

Denial of Suppression Motion Affirmed

U.S. v. Cruz-Mendez, -- F.3d --, 2006 WL 3190252 (10th Cir. 11/6/06) - No reasonable suspicion was necessary to justify "knock and talk." Defendant's girlfriend voluntarily consented to officers' entry of their living room. After she denied knowing Mr. Cruz-Mendez and denied anyone else was there, officers saw in plain view a cell phone with Mr. Cruz-Mendez's name etched on it that was protruding from a jacket pocket. Because officers were lawfully in a position to view the phone, no Fourth Amendment violation. District court did not clearly err re: credibility finding that girlfriend voluntarily consented to search of bedroom, where Mr. Cruz-Mendez was found hiding under a pile of clothes in the closet. The totality of the circumstances established pc to arrest him for illegal reentry.

Consent to Search Not Coerced Despite Handcuffs on Defendant

U.S. v. Flowers, 2006 WL 3095829 (11/2/06)(unpub'd) - It was okay to continue to handcuff the defendant, even though no gun was found on his person, due to a prior report that he previously had a weapon. Plus, the officers had probable cause to arrest the defendant because of the eyewitness complaint that the defendant had threatened her with a gun. The officers could accept the uncorroborated story absent evidence it was "fishy." The defendant's consent to search his car while he was handcuffed was not coerced.

Defendant Loses Out When BOP Refuses to Credit State Time

U.S. v. Leider, 2006 WL 3095871 (11/2/06)(unpub'd) - BOP did not give the defendant credit for the time he spent in state custody prior to the sentencing hearing, even though the d.ct. ordered the federal sentence to run concurrently to the state sentence. The defendant's attempt to correct the problem by filing a motion pursuant to 18 U.S.C. § 3582 was to no avail because that provision is only for applying subsequently-enacted favorable sentencing guidelines [obviously it's not used that often]. [Suggestion: at the sentencing hearing the defendant should have asked the d.ct. to subtract from his federal sentence the time he had already spent in state custody because the BOP is not going to give credit for custody time that is credited against another sentence.]

Court Can Enhance Sentence Despite Jury's Verdict, Tenth Holds

U.S. v. Miller, 2006 WL 3117912 (11/3/06)(unpub'd) - The 10th reverses the d.ct,'s refusal to impose enhancements based on a misunderstanding of Booker. The d.ct. mistakenly believed it could not impose the enhancements without jury findings to justify the enhancements. The d.ct. was free to enhance the sentence, regardless of the jury's verdict.

Admission of Immigration Files Held to Be Non-Testimonial; Crawford Claim Rebuffed

U.S. v. Lara-Ibanez, 2006 WL 3086699 (11/1/06)(unpub'd) - The 10th holds that the admission of the defendant's immigration files, including the deportation warrant, and a certificate of non-existence of a record, did not violate Crawford because that evidence is non-testimonial and admissible under the public records hearsay exceptions---Fed. R. Evid 803(8) & (10).

Mental Health Treatment, Counseling Conditions Improperly Imposed

U.S. v. Hopson, 2006 WL 3095883 (11/2/06)(unpub'd) - An important case now that the probation office is giving us notice of its proposed supervised release conditions. The d.ct. did not have a proper basis to impose conditions requiring mental health treatment and domestic violence counseling where there was no evidence of a connection between any mental health problems and the offense, which involved taking public housing assistance without reporting it as income. There was no evidence the defendant's husband's domestic violence convictions had anything to do with the offense.

Tenth Upholds District Court's Denial of Defendant's Effort to Withdraw Plea

U.S. v. Graham, 2006 WL 3118297 (11/3/06) - All seven of the relevant factors (e.g. assertion of innocence, delay, prejudice and inconvenience to the government and court, voluntariness of plea etc.), warranted the d.ct.'s denial of the defendant's motion to withdraw his mid-trial plea where the defendant asserted he was unhappy with the 25-year sentence he agreed to, he only had a short time to agree to the plea when his co-defendants started pleading in the middle of trial and a non-testifying informant recanted his prior statements. The plea was voluntary, although it was entered pursuant to an oral plea agreement.

The d.ct. erred when it adopted the PSR's misdescription of the plea agreement as stipulating the defendant was responsible for certain additional amounts of cocaine base. The 10th would have reversed the sentence due to that error except that it made no difference to the sentence, which was imposed pursuant to an 11(c)(1)(C) agreement. The d.ct. accepted the plea agreement based on a number of good reasons that were not influenced by the incorrect plea agreement description, including the trial evidence that resulted in the conviction of a co-defendant for possessing a greater amount of cocaine base and, "most importantly," the d.ct. said it would have imposed the same sentence even if the advisory guideline range had been miscalculated.