Fighting the Incarceration Addiction

Steve Sady, First Assistant at the Oregon Federal Public Defender Office, has again taken a very complicated subject and digested it in an accessible, "user-friendly" manner. Although directed at federal defenders, his ideas, set forth in more detail in this paper, for combatting the Bureau of Prisons' unconscionable efforts to ratchet sentences ever higher and be increasingly stingy with inmates' opportunities to reduce their time are a must-read for every attorney practicing federal criminal defense. Here is the link to the Ninth Circuit Blog, which summarized the report in one page.

Here's how he begins:

"Our society is addicted to over-incarceration. The signs are everywhere: we have the highest rates of incarceration in the world; racial disparities in incarceration rates are a national disgrace; and Justice Kennedy tells us that the prison guard union's lobbying efforts for more incarceration is "sick." Yet more mandatory minimum sentences are proposed every time a politician needs a headline. What's a Federal Defender to do?"

Since the advent of the Guidelines, the Bureau of Prisons has systematically increased the actual time served by abandoning or distorting statutory authorizations for sentence reductions, good time credit, and community corrections. Judges have no way of knowing how the BOP is increasing actual incarceration -- and it's a one-way ratchet -- unless we tell them. The bureaucratic incentives for over-incarceration, at greater tax-payer expense, result in irrational sentences and gratuitous cruelty.

The article provides a number of potential ways to address over-incarceration. The best way is to anticipate problems at sentencing. We can request that judges trump BOP over-incarceration policies by structuring proposed sentences to accomplish what Congress authorized but the BOP won't implement."

The January 2007 Liberty Legend Newsletter Available

The Liberty Legend, published by the National Association of Federal Defenders, is available online at the Association's web site.
In this issue . . .
THOUGHTS FROM THE PRESIDENT
NATIONAL ASSOCIATION OF FEDERAL DEFENDERS
2006 OUTSTANDING ASSISTANT FEDERAL DEFENDER AND
OUTSTANDING RESEARCH AND WRITING SPECIALIST AWARDS
SEXUALLY DANGEROUS PERSONS?
By David Beneman, Federal Defender, District of Maine
TENTH CIRCUIT WEIGHS IN ON SUPPRESSING IDENTITY EVIDENCE IN REENTRY CASES
By Shari Lynn Allison, Research and Writing Specialist
District of New Mexico, Las Cruces Office
KUDOS KORNER
MOUSSAOUI DEFENSE TEAM GIVEN
SPECIAL NAFD RECOGNITION
By Tim Crooks, NAFD President , Supervisory Assistant Federal Public Defender,
Southern District of Texas, Houston Office
FEDERAL RULE OF CRIMINAL PROCEDURE 29:
A NUTS AND BOLTS GUIDE TO JUDGMENTS OF ACQUITTAL
FOR CRIMINAL DEFENSE ATTORNEYS
By John Balazs, Attorney At Law, Sacramento, California
ADVANCED FEDERAL DEFENDER SEMINAR – SAN FRANCISCO 2006
“STATUTORY” ENHANCEMENT BY
JUDICIAL NOTICE OF DANGER:
WHO NEEDS LEGISLATORS OR JURORS?
By William R. Maynard, Supervisory Assistant Federal Defender
Western District of Texas, El Paso Office

Guidelines News

The Sentencing Commission has filed an amici brief in the Supreme Court in US v. Rita and US v. Claiborne, the two cases in which the Supreme Court will address the issue of whether a sentence within the "advisory" guidelines range is presumptively reasonable. It has also posted proposed guidelines changes. Both are available at the USSC website.

10th Circuit Opinions

Tenth Circuit opinions are now posted daily here at the Tenth Circuit's website.

When in Doubt, Defer to the Dog

United States v. Stewart, 2007 WL 127374 (1/19/07) - The 10th makes absolutely clear that the division among the 10th's judges in the en banc decision in U.S. v. Holt, 264 F.3d 1215 (10th Cir. 2001), has been resolved by the S.Ct. in Muehler v. Mena, 544 U.S. 93 (2005). During a traffic stop it is now okay to question people about anything, including about weapons, even about unloaded weapons, as long as the questioning does not extend the duration of the stop. The 10th upholds a search of the defendant's car on a ground not relied upon by the d.ct. The d.ct. was wrong to justify the search on the grounds that it was incident to an arrest where the defendant was already on his way to the police station at the time. But, the 10th and "Boomer," the wonder dog, save the day. The dog's alert established probable cause to search the car. It was fair to affirm on that basis, even though the government didn't inform the defendant about the alert until the evidentiary hearing, because defense counsel brilliantly cross-examined the canine officer and the d.ct. gave counsel 10 days to produce new evidence regarding the alert. Although the d.ct. said "skip the dog," that was after all the evidence had been presented and the defense was given "tremendous" latitude. The 10th concluded "the dog sniff may have been serendipitous, but it is not superfluous."

Convictions in Tax Fraud Case Affirmed; IADA, Severance, Sentencing Claims Rejected

U.S. v. Pursley, 2007 WL 64833 (1/11/07) - The anti-shuffling provision of the federal Interstate Agreement on Detainers Act was not violated when, pursuant to a writ of habeas ad prosequendum, the defendant was transferred from federal custody for a day to be arraigned in state court. While the length of time a defendant is returned to another jurisdiction's custody doesn't matter, the defendant here was not "returned to his original place of imprisonment" within the meaning of the IADA because he was not given over to the state to continue service of his already-imposed state prison sentence, but for a different set of charges that he had not yet been convicted of.

While stressing a defendant has a "difficult" burden to overturn a denial of a motion to sever, the 10th holds it was not an abuse of discretion to deny such a motion in this case. The defendant had successfully shown that his defense was antagonistic to his co-defendant's defense. The defendant claimed he knew nothing about his co-defendant's plan to collect tax refunds by filing false tax returns in the defendant's and other prisoners' names. The co-defendant claimed the tax returns were perfectly legitimate. But, conflicting defenses is not enough to obtain a severance and he had not shown sufficient prejudice resulting from joinder, since he could present evidence on behalf of his defense and, if the jury bought the co-defendant's defense, he would be acquitted also.

It was not a violation of Double Jeopardy to impose consecutive sentences for aiding and abetting and conspiracy with respect to the same principal offense. Aiding and abetting and conspiracy have different elements.

10th Determines It Lacks Jurisdiction to Consider Denial of Departure Motion

U.S. v. Fonseca, 2007 WL 64832 (1/11/07) - The 10th did not have jurisdiction to consider the question whether the d.ct. erroneously denied a downward departure motion because the d.ct. did not unambiguously state it had no authority to depart on the ground of the defendant's ignorance of the meth's purity. The 10th interpreted the d.ct.'s remarks as rejecting the factual basis for the departure, not its legal basis. The 10th noted it would have jurisdiction to consider the reasonableness of the within-Guidelines sentence, but the defendant had elected not to raise that question.

Cooperation Efforts Should Be Considered At Sentencing Regardless of Whether 5K Motion Filed

U.S. v. Doe, 2007 WL 80724 (1/12/07)(unpub'd) - The 10th agrees with the Second Circuit's holding that a sentencing judge should take into consideration a defendant's efforts to cooperate, regardless of the denial of, or refusal to file, a 5K motion. The sentence was procedurally unreasonable because the record did not reflect that the d.ct. considered the defendant's cooperation. Instead, the d.ct. simply said: "rolling over on a co-defendant isn't substantial assistance in my judgment," when it denied the government's 5K motion.

IAC Can Undermine Appeal Waiver, But Claim Must Be Raised in 2255 Motion

U.S. v. Browner, 2007 WL 53210 (1/9/07)(unpub'd) - The 10th holds that it can consider whether ineffective assistance ("IA") undermined the knowing and voluntary nature of the plea agreement in determining whether an appeal waiver was valid. Implicitly the 10th acknowledges the IA does not have to go directly to the appeal waiver provision. Nevertheless, the IA claim had to be addressed in a 2255, not on appeal. Appeal dismissed.

Miranda Not Violated By Asking Handcuffed Defendants If They Owned House Being Searched

U.S. v. Glover, 2007 WL 60897 (1/10/07)(unpub'd) - The officer did not have to give Miranda warnings when he asked the handcuffed occupants of a house that was the subject of a search warrant whether the house was theirs. An inquiry about the suspect's residence is just a normal question attendant to arrest, (although in context it certainly sought an incriminating response!). The officer also did not have to give warnings when the officer told the defendant and his companion they were being arrested for possession of the marijuana and gun found in the house. The defendant's response that those items were his, not his companion's, was admissible. Informing suspects of the grounds for arrest is prudent police practice, not interrogation.

No Abuse of Discretion in Refusing to Reopen Trial to Allow Defense Witness Testimony

U.S. v. Espinoza, 2007 WL 60879 (1/10/07)(unpub'd) - The 10th encourages district courts to reopen cases after the parties have rested. "When the burden is not significant, and assuming the admissibility of the proposed evidence, prudence suggests that district courts lean towards granting motions to reopen so that the parties have a full opportunity to be heard." But, here the d.ct. did not abuse its discretion when it refused to reopen the trial for a defense witness to testify. Defense counsel announced the defense rested without presenting any witnesses and then in front of the jury the defendant himself exclaimed: "You're going to give me life without the possibility of parole, and you're not going to allow my side to be heard."

10th Expresses Preference for De Novo Sentencing Following Remand

U.S. v. Brown, 2007 WL 64852 (1/11/07)(unpub'd) - The 10th expresses a strong preference for de novo resentencing upon remand from the 10th unless the mandate is extremely restrictive. The d.ct. was wrong when it said it refused to conduct de novo resentencing, but it actually considered matters outside of the particular reason the case was remanded. So, no harm. It was okay to give criminal history points for a state court drug conviction, even though the drugs were possessed simultaneously with the defendant's possession of the firearms, which were the subject of the federal case. It was also okay, even though the defendant was also convicted in federal court of carrying a firearm in relation to the state drug offense, because that conviction resulted in a mandatory minimum consecutive sentence, uninvolved in the guideline calculation.

Submission of Immaterial False Docs Qualifies for Obstruction Enhancement

U.S. v. Wardell, 2007 WL 64834 (1/11/07)(unpub'd) - Under U.S.S.G. § 3C1.1, & n. 4(c), the submission of false documents constitutes obstruction of justice even if the documents are immaterial. The 10th could not figure out why the Sentencing Commission treats false documents differently from other false statements, but that's what the plain language says. So there. The defendant's submission of false documents that did not help his case warranted an obstruction of justice enhancement.

Relief in Habeas Case Denied Despite Wrongful Admission of Accomplice Statements

Farrell v. Soares, 2007 WL 51938 (1/9/07)(unpub'd) - In a habeas case, admission of statements of accomplice violated pre-Crawford confrontation law because it was unreliable. The Colorado S.Ct., in contravention of Lilly v. Virginia, 527 U.S. 116 (1999), mistakenly relied on the voluntariness of the accomplice's statements, the absence of an offer of leniency and the presence of statements against the accomplice's own penal interests. The level of detail might be appropriate to consider. But, the evidence did not overcome the presumption of unreliability of an accomplice's statements. Nevertheless, the error was harmless.

Aiding and Abetting a Theft Offense Is An Aggravated Felony, Supreme Court Holds

Gonzales v. Duenas-Alvarez, --- S.Ct. ----, 2007 WL 98723 (Jan. 17, 2007)

In an 8-1 decision (Stevens dissent–he would have remanded the important part to the court of appeals), the Supremes, in another post-Taylor decision (the Taylor “categorical” approach: to determine the nature of a criminal statute–e.g. burglary–you review the elements of the statute to determine if the statute fits within the generic crime of burglary or whether the elements broadly include more than generic burglary), held that aiding and abetting a theft is itself a crime that falls within the generic definition of theft, reversing the Ninth Circuit.

Petitioner was deemed removable because of a conviction for aiding and abetting a car theft contrary to a California law (which included “aiding and abetting” within the statute outlawing car theft); federal law allows removal for conviction of a theft offense.

The Court first recognized that at common law and in all jurisdictions, principals, aiders and abettors, and accessories before the fact are all treated the same in terms of culpability. The fact that under California law an A&A is held “liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged” does not expand and broaden the generic offense of theft, in this case, to include offenses that are not generic theft–it does not criminalize conduct that would not be considered generic theft.

The wiggle room for future cases: The litigant can show “a realistic probability” that the State would apply its statute to conduct that falls outside the generic definition of a crime. The litigant can do that in one of two ways. First, by showing that the jurisdiction has applied it in the past in an expansive fashion. The Court said that only 10 jurisdictions have rejected the “natural and reasonable consequences” expansive view of A&A, so most jurisdictions, including the Feds, retain the theoretical possibility of an overly-expansive view. The Court conceded that theoretically a litigant can show something “special” about the jurisdiction’s version of the doctrine-“for example, that [the jurisdiction] in applying it criminalizes conduct that most other States would not consider [the offense].”I.e., look at decided cases from that jurisdiction.

The second way a litigant can show that realistic possibility, is by showing that the statute was so applied in his own case. But he must at least point to his own case (or other cases) in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

Notice of Variance for Non-Guideline Sentence Required

U.S. v. Atencio, --- F.3d ----, 2007 WL 102977 (10th Cir. Jan. 17, 2007)

A long-awaited and welcome reversal and remand on an upward variant sentence in the early post-Booker days. (Weird procedure note: Murphy wanted the case to be initially reviewed en banc because he was annoyed with the panel opinion, so he wrote an opinion that preceded the opinion proper, and was joined by Briscoe and Kelly. Tacha, Kelly, Briscoe, Murphy, Tymkovich and Gorsuch would have granted en banc.). The panel was Henry, Lucero, & O’Connell and Lucero wrote the opinion.

1. The Tenth joins 4 circuits and holds that Rule 32(h) and the reasoning underlying Burns applies to variant sentences outside the guidelines, and a district court must give the parties notice of its intent to set a sentence outside of the guidelines (4 circuits hold that Rule 32(h) does not require notice). Counsel’s failure to object to the lack of notice however, did not forfeit the objection on appeal under Bartsma.

BUT BIG PRACTICE WARNING: the en banc panel has overruled Bartsma, but did not apply it retroactively to this case. What this means is that a defendant MUST object to the lack of notice at sentencing to preserve his claim of Rule 32(h) error for appellate review. “Upon objecting to the lack of notice, the defendant should then move for a continuance.”(I am not certain why the opinion is not en banc but is en banc for this overruling of Bartsma).The overruling is applied prospectively.


2. The district court employed inadequate procedure in setting an upward variant sentence under Sec. 3553 by failing to explain its reasons for relying on certain factors. The 10th indicates that pre-Booker analysis may still have a place in addressing the reasons underlying imposing a variant sentence. The district court, for example, based the variant sentence in part upon a prior offense that had already been addressed in D’s criminal history. “Because the Guidelines carefully account for prior crimes through criminal history categories, a district court varying or departing on the basis of a conviction already considered in the criminal history score must at least explain why that score fails to reflect the seriousness of the prior crime. Allowing a district court to vary or depart in the absence of such explanation would amount to unjustified double-counting of the prior crime, and also hinder this court's ability to review the reasonableness of the variance or departure.” The 10th went on, hewing pretty closely to the D’s argument, to point out that the district court failed to explain why it needed a variant sentence and why the guidelines did not in fact adequately take into account the very features the court was using to base its higher variant sentence. “When a factor is already included in the calculation of the guidelines sentencing range, a judge who wishes to rely on that same factor to impose a sentence above or below the range must articulate specifically the reasons that this particular defendant's situation is different from the ordinary situation covered by the guidelines calculation.”

State Court's Denial of Brady Claim Upheld

Snow v. Sirmons, -- F.3d --, 2007 WL 39205 (10th Cir. ) - OK courts' denial of relief on Brady claim did not constitute an unreasonable application of federal law because the evidence in question was not exculpatory and would not have altered the trial outcome. The state did not deny due process by failing to preserve potentially useful videotapes; there was no showing of bad faith and the exculpatory value of the evidence was not apparent before it was destroyed. State court's resolution of multiple IAC claims was not objectively unreasonable even if the Tenth might have decided otherwise. Petitioner did not establish prejudice re: counsel's failure to seek suppression of in-court IDs and failure to call certain witnesses because he failed to show a suppression motion would have been granted and that the witness testimony would have altered the outcome.

Recent Tenth Circuit Published Cases

U.S. v. Guerrero,--- F.3d ----, 2007 WL 4217 (10th Cir. Jan. 02, 2007)

Two Hispanic guys getting gas at a station are spotted by two lunching cops who think they look a little weird (one dressed dressy and the other in jeans with an age difference between them) and decide to put down their sandwiches and try a little hunch-testing profiling.

Once police got to talking to the two men (a consensual encounter), they were able to put together a number of pretty darn weak links to form a reasonable suspicion chain to detain them long enough to do a records check and subsequently ask for consent to search: source-city-the-Drug-Road-caravan route travel; religious iconography in vehicle; single key on key ring; two mis-matched guys traveling together who did not seem to know each other well; sketchy knowledge of vehicle ownership. The detention ended when cops handed vehicle registration back to the Ds.

Even though D declined cops’ first request to consent to a search of the car, (this was after cops returned papers) the consent was voluntary. D conceded that his palms-up non-verbal gesture was consent, but that it was not voluntary. Because Ds’ argument rests on his position that he was still detained, 10th rejects it.

U.S. v. Saenz-Gomez, --- F.3d ----, 2007 WL 4215 (10th Cir. Jan. 02, 2007)

Alien D’s prior drug conviction was final and was a “conviction” within meaning of the guidelines and federal immigration law, warranting a 12 level enhancement, even though D’s appeal of the prior was pending at the time he was “removed” from the US as a result of the conviction. Joe and Chuck intend to battle on (quixotically) against the lame reasoning of the panel which rejected their finality argument that looked to the history of the immigration law for interpretation; the 10th opted for language that to the panel appeared plain.

Whitington v. Ortiz, --- F.3d ----, 2007 WL 10766 (10th Cir. Jan. 03, 2007)

Pro se prisoner exhausted his administrative remedies in 8th A prison conditions 1983 action (he was denied free personal hygiene products even though after his prison account was docked for restitution, medical care, legal postage and copying, he had nothing left to purchase such products. He claimed he was being forced unconstitutionally to choose between pursuing his legal claims and purchasing necessary basic hygiene products) when he waited to file his suit until after the prison missed its deadline for responding to his third and final level of grievance.

Martin v. Rios, --- F.3d ----, 2007 WL 10767(10th Cir. Jan. 03, 2007)

Following the Supreme Court decision in Lopez v. Davis, 531 U.S. 230, the 10th holds that the BOP regulation restricting early release after completion of a drug abuse treatment program to those convicted of a non-violent felony and which felony did not involve the use, possession or carrying of a firearm, “rationally reflects the view that such inmates displayed a readiness to endanger another's life” and applies to P who was convicted of being a felon in possession of a firearm.

U.S. v. Aguayo-Gonzalez, --- F.3d ----, 2007 WL 10758(10th Cir. Jan. 03, 2007)

D essentially conceded at trial that he was guilty of two counts, but contested the third, misdemeanor count and was convicted of all 3 counts. He did not get an acceptance reduction. He did not appeal that calculation (see footnote 3: if D accepts responsibility on some but not all counts of conviction, it is not a foregone conclusion that the D is not entitled to an acceptance reduction), but instead argued that his sentence was unreasonable because of a disparity between his sentence and similarly situated offenders who did receive an acceptance reduction.

The 10th rejected D’s position, looking at cases where acceptance reductions had been granted to, e.g. Ds who went to trial to contest mens rea elements only. It found that D’s testimony was not comprehensive enough, and did not occur early enough, to indicate acceptance of responsibility; his statements did not admit all facts necessary to convict him on the two felony counts to which he somewhat conceded, and besides, his contesting of the third count made it reasonable to differentiate his sentence from that of a defendant who had accepted responsibility on all counts.

U.S. v. Montano, --- F.3d ----, 2007 WL 10768(10th Cir. Jan. 03, 2007)

After losing her motion to suppress evidence, D entered a plea agreement (in front of the magistrate) that waived all her appeal rights including any sentence within the statutory maximum. The PSR determined she was a career offender, and the court sentenced her to 188 months in prison on a conviction of transporting with intent more than 100ks (240 lbs) of marijuana. The district court judge was aghast enough at the length of the sentence that he said he was going to suspend that part of the plea agreement that waived her right to appeal.

The 10th holds that the record demonstrates that the district court accepted the plea in full, including the waivers, and “an oral modification of an accepted plea agreement does not alter the substance of the agreement.” The 10th further declined to follow the 2d Cir. and held that it will enforce broad waivers of appeal even in pleas that do not limit the waiver to sentences within certain ranges.

U.S. v. Shaffer, --- F.3d ----, 2007 WL 10770(10th Cir. Jan. 03, 2007)

Evidence sufficient to uphold conviction for distribution of child porn. D used a peer-to- peer shared file computer program called Kazaa which allows others to access your files and you to access others’ files on the system. He admitted to agents that he downloaded the porn and said that he left his computer on while at work to allow others to download porn from his files. “Distribute” means allowing others to access it as in this case involving peer-to-peer file sharing programs, and does not require active transfer.

In a troubling ruling, the 10th holds that the district court did not abuse its discretion after a Daubert hearing to prohibit D’s expert from testifying that D’s hard drive configuration allowed him only to troll broadly for sexually explicit material, which snagged kiddie porn too. The district court, with the 10th endorsing it, held that this was mens rea evidence and inadmissable expert testimony under Evid. R. 704(b), which disallows a witness from stating an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged.

Written kiddie porn from D’s computer admissible under 404(b) to rebut D’s defense that he lacked the mens rea to have child porn.

No plain error in jury instructions that stated the government had to prove both intent to distribute and intent to cause to be distributed child porn (D did not object to these confusing instructions).

U.S. v. Martinez-Macias, --- F.3d ----, 2007 WL 10759 (Jan. 03, 2007)

D convicted and sentenced for reentry after conviction of an aggravated felony–prior offense was state cocaine possession. He received an 8 level enhancement. After Lopez, mere drug possession is not a felony under the federal controlled substances act, so case is remanded for re-sentencing.

The 10th addressed and rejected D’s second argument, holding that the availability of fast track programs to some offenders does not create an unwarranted disparity in sentences within the meaning of 3553(a)(6).

Life Sentence Stands Even Though District Court Had Thought Life Too Long

U.S. v. Adams, 2007 WL 4209 (1/2/07)(unpub'd) - The 10th refuses to reverse the defendant's life sentence for plain Booker error, even though the d.ct. said it would impose a 30 year sentence if the guidelines were found to be unconstitutional. Objective consideration of the § 3553(a) factors did not warrant a sentence below the life sentence called for by the guidelines. The 10th did not want to remand based on "particular, subjective sympathies of an individual judge." That would be awful, the 10th explains, because a "spate of such remands might impugn the fairness, integrity and public reputation of judicial proceedings."

Search and Seizure Decisions Go Against Defendants

U.S. v. Yeomans, 2007 WL 30032 (1/5/07)(unpub'd) - Officer safety justified a patdown of the passenger and a search of the passenger compartment where the officers knew one of the occupants was the subject of two restraining orders possibly involving domestic violence, the officers saw guns and ammunition in the jeep, and the passenger acknowledged he owned them. It didn't matter that no evidence indicated the officers were actually afraid.

U.S. v. Castro-Portillo, 2007 WL 10761 (1/3/07)(unpub'd) - The 10th extends Michigan v. Summers, 452 U.S. 692 (1981), which permits the seizing of people at a place that is being searched pursuant to a search warrant, to someone who left the home to be searched prior to the search and was stopped two blocks away. Handcuffing the defendant was justified by his nervousness and the fact he left a house subject to search for weapons. The d.ct. could impose an enhancement pursuant to § 851 for a marijuana conviction, even though the government indicated in the § 851 notice and orally it was only seeking an enhancement for counts of which the defendant was eventually acquitted. The defendant failed to show how he would have conducted his defense any differently had notice been accurate.

District Court Can't Order Supreme Court to Consider Plaintiff's Application

Trackwell v. United States Government, 2007 WL 30035 (1/5/07) - A federal district court did not have authority under the mandamus statute, 28 U.S.C. § 1361, to order the Supreme Court Clerk or the S.Ct. itself to do anything. The plaintiff wanted the S.Ct. to consider his application challenging the constitutionality of the Iraq War. Neither the S.Ct. nor the Clerk is an "agency" under § 1361. The 10th did not offer any helpful suggestions as to how the plaintiff could get the S.Ct. to consider his application.

Tenth Refuses to Enjoin Execution

Hamilton v. Jones, 2007 WL 18926 (1/4/07) - The 10th refuses to enjoin an Oklahoma murder scheduled for today. First, the prisoner took too long to pursue state administrative remedies and then to file a § 1983 complaint to contest the lethal injection process. Second, the prisoner did not establish a likelihood of success challenging the process because Oklahoma's protocol seemed just fine, even though there was no provision for someone to monitor whether the anesthesia was working. Though monitoring would be "optimal," the 10th was willing to accept the attenuated" risk the prisoner might suffer unnecessary pain. The botched execution in Florida where the IV was pushed completely through the inmate's veins, prompting a moratorium on Florida executions, was irrelevant here because Oklahoma requires an EMT to deal with the IV. May Mr. Hamilton rest in peace.

White-Collar Defendants Get Wire Fraud, Money Laundering Convictions Reversed

U.S. v. Lake, 2007 WL 30038 (1/5/07) - Ho hum, another defense success, this time for well-heeled corporate types. The 10th reversed for insufficiency of the evidence the defendants' numerous convictions for wire fraud and the money laundering connected to the wire fraud. The government's case hinged on the defendants' failure to inform the SEC in a number of documents about their personal use of Westar's corporate airplane. Because the law required the defendants to file the documents, they could be guilty of wire fraud only if the defendants lied in the documents or omitted information that had to be reported. The government failed to prove the defendants had to report their personal airplane use because they presented no evidence about the cost to the corporation of the personal use, which had to be over $ 50,000 before it had to be reported. The government only presented evidence of the value of the plane flights to the defendants.

The 10th also reversed for retrial convictions for "circumventing" and conspiracy to "circumvent" by omitting mention of the personal plane use in internal documents, because the trial court failed to instruct the jury about the SEC regulations. The jury could not properly evaluate the defendants' intent in omitting the information without knowing what the SEC required to be reported. The 10th rejected the defendants' argument that they could not be guilty of conspiracy under the circumvention statute. With few exceptions, [e.g. a person being transported for prostitution purposes], not applicable here, a person can be guilty of conspiring to violate a statute.

Pretrial Detainee's 2241 Motion Granted to Prevent Retrial

Walck v. Edmondson, 2007 WL 18921 (1/4/07) - A nice habeas victory. The 10th holds a pretrial detainee properly pursued her attempts to prevent her retrial through 28 U.S.C. § 2241, rather than § 2254. As a result, the ridiculously stringent relief preclusion rules ["contrary to" "unreasonable application"] did not apply; no deference was owed the Oklahoma courts' resolution of the issues. The petitioner's case presented extraordinary circumstances warranting federal intervention before the retrial started because the retrial itself would violate her Double Jeopardy right not to undergo a second trial. A retrial would violate Double Jeopardy where at the first trial the court granted a mistrial after a couple witnesses testified when the court was told a government witness was in the hospital having a C-Section. The missing witness did not create a manifest necessity because: right before the trial began the government knew the witness might not be able to testify [she was on her way to the hospital to have the baby]; the government may have been able to present her preliminary hearing testimony to the jury; the court could have granted a continuance for several days without discharging the jury; the witness was not that important a witness. Prosecutorial misconduct was not necessary for relief to be granted. The existence of manifest necessity is the issue.