Wednesday, February 28, 2007

Ex Parte Communication By Judge With Jurors Was Harmless Error

Bodine v. Warden, 2007 WL 534449 (2/22/07)(unpub'd) - Any error committed when the judge had a conversation with Oklahoma jurors, outside the presence of counsel and the petitioner, was harmless. The jurors told the judge they wanted all the 20 year sentences they voted for to run consecutively. The judge did impose them consecutively for a total of 220 years. The petitioner had not shown the judge was influenced by the jurors.

Order to Involuntarily Medicate Defendant to Competency Affirmed

United States v. Archuleta, 2007 WL 549277 (2/23/07)(unpub'd) - The 10th affirms an order to involuntarily medicate a defendant to competency. The 10th troublingly holds that, in deciding whether the governmental interest in making the defendant competent has been lessened by the time the defendant has already spent in custody, the court should compare the time in custody to the statutory maximum, not to the sentence the defendant is likely to receive under the guidelines. The 10th doesn't explain why that is so.

Harmless Error Found Where Jury Considered Less-included Offense

U.S. v. Wilson, 2007 WL 458007 (2/13/07)(unpub'd) - The trial court erred by allowing the jury to consider the lesser-included offense only after finding the defendant not guilty of the greater offense, rather than allowing such consideration after the jurors were unable to reach a verdict after "all reasonable efforts." But, the error is harmless because the defendant was not entitled to a lesser-included offense instruction.

Appeal Not Moot Where Lesser Supervised Release Term Possible

U.S. v. Turner, 2007 WL 534132 (2/22/07)(unpub'd) - A liberal interpretation of when a case is not moot. Although the defendant who was challenging the length of his prison term had finished his prison term, the case was not moot because on resentencing the d.ct. might impose a lower supervised release term, especially after Booker. The 10th, however, affirmed the sentence. Of interest to those wishing to avoid appellate representation, the 10th refused to allow the defendant's appellate attorney to withdraw where she asserted the defendant did not want her to represent him, but did not allege a total breakdown in communication and the defendant himself never asked for a new attorney or filed his own brief.

Habeas Petition Reinstated

Wickham v. Friel, 2007 WL 475827 (2/15/07)(unpub'd) - The 10th overturns a habeas petition dismissal on time-limit grounds. The one year did not start to run until the petitioner should have been aware of the suppressed evidence that the alleged victim had lied about sexual abuse before. That starting time was later than the state claimed.

Evidence Insufficient to Support Meth Conviction, But Sentence For Second Conviction Affirmed

U.S. v. Bateman, 2007 WL 549386 (2/23/07)(unpub'd) - There was insufficient evidence to prove possession with intent to distribute where the defendant shared meth with another person, but possessed personal use amounts and no drug distribution paraphernalia or large amounts of cash. Evidence that the defendant distributed meth during a period of time later than that alleged in the particular indictment count in question did not prove he distributed meth during the count time period. But, the 10th affirms the sentence the defendant received for another count that was concurrent with the sentence for the overturned count.

Relief Granted Where Sentence Enhancement Based on Ancient Conviction

U.S. v. Sims, 2007 WL 521229 (2/21/07)(unpub'd) - The 10th grants a habeas for ineffective assistance conceded by the government where defense counsel failed to object to counting a conviction that was too old to be used under USSG § 2K2.1.

Blanket Employment Verification For Supervised Releasees Upheld

U.S. v. Du, 2007 WL 533022 (2/22/07) - While drawing some very fine lines, the 10th upholds the Colorado probation office's broad policy to verify supervised releasees' employment with their employers. The 10th distinguished its decision in U.S. v. Souser, 405 F.3d 1162 (10th Cir. 2005). In that case, the 10th held the Colorado probation office's policy to require all supervisees to inform their prospective employers about their criminal history violated USSG § 5F1.5's requirement of an individualized assessment of the need for an "occupational restriction" that limits the terms of employment. The 10th held the new policy did not limit the terms of employment. The supervisees aren't restricted at all. Rather, the policy was needed for those warm and fuzzy, pistol-packing, officers to work with employers to ensure supervisees' reintegration into society [surely, not to get them fired]. Pay stub proof of employment wouldn't cut it because that can be faked and the officer needs to see how the employee is doing, determine whether restrictions on job duties are needed and develop a relationship with the employer. Surprisingly, probation officers testified that hardly anyone ever loses a job because of employment verification.

Meth Possession Conviction Affirmed

U.S. v. Triana, -- F.3d --, 2007 WL 576036 (10th Cir. 2/26/07) - there was sufficient evidence that Ms. Triana possessed the meth she was carrying in a pouch when stopped; she made a statement which demonstrated she knew about the meth. The jury instruction definition of "deliver" as "to yield possession" did not mislead the jury and was not erroneous.

Unnecessary for Sentencing Court to State Reasons for Rejecting Booker Argument

U.S. v. Ruiz-Terrazas, -- F.3d --, 2007 WL 576034 (10th Cir. 2/26/07) - The Court of Appeals oveholds the district court did not err in failing to articulate reasons for rejecting 3553(a) arguments for below-GLs sentence in illegal reentry case. The district court was not required by § 3553(c) to address the § 3553(a) factors on the record in imposing within-GLs sentence; further explanation would not have affected the outcome. Even without a presumption of reasonableness attached to a within-GLs sentence, the COA says it would not find the sentence here unreasonable in light of the advisory GL range, the 3553(a) factors, and Mr. Ruiz-Terrazas's criminal history. Consideration of prior convictions re: both calculation of criminal history and a § 2L1.2 enhancement was permissible.

Appeal Waiver Included Supervised Release Issues

U.S. v. Sandoval, -- F.3d --, 2007 WL 575835 (10th Cir. 2/26/07) - waiver of appeal was valid and covered all aspects of sentence except upward departure, thus precluding appeal of supervised release conditions.

Thursday, February 22, 2007

Capital Habeas Petitioner Gets Reversal

Anderson v. Sirmons, --- F.3d ----, 2007 WL 521173 (10th Cir. Feb. 21, 2007).

Murphy authored the opinion that found the Oklahoma P had received ineffective assistance during the penalty phase of the case (P was represented by FPD in W. Ok.).

WARNING: This paragraph for habe-o-philes only: P did not raise IAC in state because appellate counsel was not conflict free. The fed dist ct sent P back to state court to pursue the IAC in a state habeas, and the FPD office in OK sent an attorney to state court ONLY to ask for appointment of conflict-free counsel on the state habeas (“the only feasible means to adequately call this matter to the state court's attention.”). Appointed state counsel asked for and was denied additional time to investigate the IAC at penalty phase issue and file a successor petition, and state court said anyway the successor petition would be untimely, so counsel withdrew, and P filed to reinstate his federal habeas. Read the opinion for the exhaustion and procedural bar arguments and resolutions at this juncture. Fed district court found no PB, and futility excused the exhaustion issue, and 10th Cir. Upheld this determination.

The merits: 10th reaffirms that its duty is to be particularly vigilant when reviewing a death case. State trial counsel devoted all of his efforts to the guilt phase of case, and little to investigating mitigation for the penalty phase. GREAT record development in the federal habeas case regarding what was NOT done by trial counsel in terms of investigation for the penalty phase, the wealth of mitigation evidence there was to be found. The 10th stated that this was not a matter of strategic choice by counsel, it was a failure to investigate.

The 10th overruled the dist ct determination regarding the 2d Strickland prong, finding that P was prejudiced by the failure to investigate and therefore present mitigation evidence. Regardless of how overwhelming the evidence of guilt and how overwhelming the evidence of the heinous nature of the offense, the 10th articulated this reasoning and standard: “the absence of this readily available mitigation evidence left the jury with no explanation for the murders other than the prosecution's assertion Anderson was “evil.” Although the case against Anderson was strong and the murders in this case were horrific, courts have not hesitated to grant relief in similar circumstances where the absence of available mitigation evidence left the jury with a “pitifully incomplete” picture of the defendant. Had the jury been presented a complete picture of Anderson's background and history, there is a reasonable probability at least one juror would have struck a different balance between the mitigating and aggravating factors.”

Criminal Continuing Enterprise Conviction Affirmed

U.S. v. Torres-Laranega, --- F.3d ----, 2007 WL 521185 (10th Cir. Feb. 21, 2007).

On a continuing criminal enterprise (CCE) conviction, no plain error in the jury instructions on the “substantial income or resources” element of the offense, and the instructions did not allow the jury to find that the D derived his “substantial income” simply by virtue of having been a manager of the scheme.

Evidence was sufficient to prove D obtained “substantial income” from a continuing series of violations as a whole (it is not necessary that the government prove substantial income from each violation). Read the opinion for fine points in CCE proof issues regarding charged violations and direct and circumstantial evidence of income from the enterprise. Court rejected what seemed to be a gross vs. net income argument made by D.

Very Good BOP Classification Decision

Wedelstedt v. Wiley, --- F.3d ----, 2007 WL 512517 (10th Cir. Feb. 20, 2007)

The 10th Cir., per Murphy, finds that BOP regulations prohibiting transfer of a federal inmate to a Community Correctional Center (“CCC”) until ten percent of his sentence remains are inconsistent with clear congressional intent articulated in 18 U.S.C. § 3621(b) (the statute that authorizes the BOP to designate the place of confinement). The 10th follows the 2d, 3d, and 8th Circuits, the only ones to have thus far ruled on the issue, invalidating the BOP regs.

The BOP designated P to a CCC for the last 33 days of his sentence (10% after calculating his GT credits). He filed under 2241, claiming that the BOP's regulations impermissibly restricted the discretion Congress gave the BOP in 18 U.S.C. § 3621(b) to consider transferring him to a CCC prior to the last ten percent of his sentence.

The 10th finds that § 3621(b) unambiguously directs the BOP to place an inmate in any facility, after it has considered 5 factors enumerated in the statute. It does not conflict with 18 U.S.C. § 3624(c), the statute that directs the BOP to “assure” that a prisoner spends the last 10% of his term, but not to more than six months, “under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for his re-entry into the community.” § 3624(c) “has no bearing on whether a CCC may be considered as a place of imprisonment at some earlier point in a prisoner's period of incarceration” under § 3621(b). Because Congressional intent is clear in § 3621(b), no Chevron deference is owed to the BOP regulation.

Hartz dissents.

Wednesday, February 21, 2007

Cops Must Investigate Before Arresting Based on Toddler's Hearsay

Cortez v. McCauley et al., -- F.3d --, 2007 WL 503819 (10th Cir. 2/16/07) - en banc rehearing decision in § 1983 action by husband and wife against named officers and Bernalillo Co. The COA separately addresses the constitutional violations and excessive force claims of both plaintiffs. Officers had a duty to investigate before making a warrantless arrest based on double hearsay abuse allegations from a 2-year-old. Defendants are not entitled to qualified immunity re: wrongful seizure claim in the absence of arguable reasonable suspicion or exigent circumstances and they must establish justification for the use of force in an investigative detention. Where there was no constitutional violation, officers are entitled to qualified immunity on excessive force claim.

Aiding Unauthorized Access to Computer Conviction Upheld

U.S. v. Willis, -- F.3d --, 2007 WL 495313 (10th Cir. 2/16/07) - There was sufficient evidence to support felony conviction for aiding and abetting the unauthorized access of a protected computer because no evidence is necessary of intent to defraud or of the defendant's knowledge of the value of the information obtained. Mr. Willis conceded that, in exchange for meth, he provided access that he had through his employment to a LexisNexis service that supplies personal information. He gets a remand for resentencing because the district court erred in failing to make particularized findings about the scope of the criminal activity he agreed to undertake.

Thursday, February 15, 2007

138 Easy Mitigating Factors

Michael Levine keeps improving his resource containing case law on virtually every mitigating sentencing factor available under both the Guidelines and Booker. What started as a modest "88 Easy Departures" is now "138 Easy Mitigating Factors." It is available directly from Mr. Levine, at The cost for the latest update is $100. The cost for an annual subscription (9-12 issues depending on developments) is $350.

Here are just the first few topics included:
Some Useful Observations on Mitigating Factors1. The advisory guideline is too harsh, is “greater than necessary,” and the purpose of sentencing is satisfied by a sentence below the guidelines1A. The sentence violates the “parsimony provision” because a lesser sentence is sufficient to achieve the purposes of sentencing
2. Sentence too long for the offense does not promote respect for the law, but the opposite
2A. The Guideline range makes no sense
3. The advisory guideline, calculated by a preponderance standard, is too high when compared to guideline calculated by standard of beyond a reasonable doubt
4. Even though mitigating factor does not qualify for traditional downward departure, or defense prohibited from seeking departure, court may still use factor to sentence below advisory range
5. Criminal conduct atypical and outside heartland of the guidelines
5A. Probation office recommends below-guideline sentence
6. Lack of knowledge or criminal intent or mens rea
7. Amount of drugs distributed overstated the defendant’s culpability because the drugs were distributed over a lengthy period of time
8. Downward adjustment for role in the offense is inadequate to show defendant’s peripheral involvement
9. Defendant had no knowledge of or control over amount or purity of drugs he delivered
10. Defendant is just an addict who delivered small quantities
11. The drugs were of very low purity
12. The disparity between crack and powder cocaine
13. The government controls the offense level by deciding quantity of drugs to order
14. Chapter Four enhancements of offense level (Career Offender designation and 851 prior) results in unfair compounding of sentence

Wednesday, February 14, 2007

Waivers of Appeal, Collateral Relief Rights Enforced

U.S. v. Leon, 2007 WL 416913 (2/8/07) - The 10th enforces the defendant's appeal waiver, rejecting his claim of incompetence to plea, since the psychs who examined him thought he was a world-class malingerer.

U.S. v. Moctezuma-Salinas, 2007 WL 416920 (2/8/07)(unpub'd) - Counsel's failure to negotiate a better plea bargain cannot be a ground to invalidate a collateral relief waiver.

Higher Sentence Imposed Following Booker Remand Not Vindictive

U.S. v. Medley, 2007 Wl 431494 (2/9/07) - Definitely a case to keep in mind when contemplating an appeal. The district court was not presumptively vindictive when she imposed a higher sentence after the sentence was reversed on appeal under Booker. The sentence went from 78 months to 97 months because the government and the probation office found new ways to enhance the guideline range. Imposing a higher sentence because mistakes were made in the original sentence does not raise a vindictiveness presumption. Ironically, the government had argued for affirmance of the original sentence on the ground that the defendant would receive a higher sentence on remand.The 10th also rejected the defendant's contention that the d.ct. had to explain why the original sentence was not reasonable. The 10th explains there may be a substantial range of reasonable sentences and the d.ct. can select any term within that range. What happened to that parsimony clause???!!! In an interesting concurrence, Judge McConnell worries that defendants are paying an "appeal tax" that may inhibit them from appealing. He posits that, since the guidelines are complicated and only provide for enhancements, mistakes are likely to be made in the defendants' favor. So, when defendants might have legitimate grievances regarding their sentences, they may not appeal for fear of ultimately getting more time, Judge McConnell thought that was unfair. He thought the Sentencing Commission should study whether sentences are higher on remand. Judge McConnell made a few suggestions to eliminate the unfairness: apply the law of the case doctrine; appellate panels might phrase their remand orders to limit what issues the d.ct. could consider; d.cts. could take notice of the "appeal tax" and lower their sentences on remand to avoid unwarranted disparities between those who appeal and those who don't.

Thursday, February 08, 2007

Jury Finding of Loss Sets Floor for Establishing Offense Level; OK for Court to Find Higher Actual and Attempted Loss

10th Cir. Published Cases

U.S. v. Wilfong, --- F.3d ----, 2007 WL 355311 (10th Cir. Feb. 6, 2007)

Although the jury stated on the verdict form that the loss due to D’s identity theft conspiracy offense was between $30,000 and $70,000, it was not a 6A violation for the district court, following the PSR, to determine that actual loss was $83,000 and intended loss was $151,000, thus increasing the guideline level. Instead of just saying “You lose, we already decided this one,” the 10th also says that after all, the jury was only asked to decide actual loss, but then cites to the jury instruction where the jury was instructed on attempted loss (OK, maybe there is a difference between intended loss and attempted loss....). The 10th also rejected his 6A challenge to level of proof and jury required to establish criminal history.

Facts supported guideline role enhancement: although the district court did not specifically find that D organized or led his co-conspirators, it is clear that he “exercised management responsibility over the critical property of the conspiracy (i.e., the fake Oklahoma driver's licenses), and shared with [his co-D] the critical decision-making authority.”

As passenger in the vehicle that eluded arrest, D “aided and abetted” the reckless endangerment flight, and the 10th upholds the bump up on his guidelines.

10th Cir. Unpublished cases

In a spate of unfortunate decisions–unfortunate policy-wise and fairness-wise–the 10th rejects challenges by BOP inmates who were eligible for or had completed the in-custody drug treatment program but did not get the sentence reduction. Granting the reduction is discretionary with the BOP, and BOP policy to consider possession of firearm offenses an ineligible "crime of violence" is reasonable. (Following Martin v. Rios, 472 F.3d 1206 (10th Cir.2007)).

Tuesday, February 06, 2007

Warrant Sufficiently Particular, Search of Glasses Case OK

U.S. v. Brakeman, -- F.3d --, 2007 WL 316831 (10th Cir. 2/5/07) - affirmance of denial of motion to suppress in Roswell gun/ drug case. Because the record on appeal did not contain the challenged warrant, supporting affidavit, photos, etc., COA was limited to referring to district court findings. Warrant was sufficiently particular despite lack of clarity as to whether it described Mr. Brakeman's property or his neighbor's. Officer's opening of glasses case containing meth during pat-down search was perfectly fine because Mr. Brakeman might have broken free and seized the case and it could have contained a knife or other weapon.

Interesting Unpublished Decisions

U.S. v. Gaines, 2007 WL 241293 (1/30/07) - Important case for anyone whose client was evaluated by Dr. Thomas Patenaude. The d.ct. erred when it refused to hold an evidentiary hearing regarding whether the defendant had been incompetent at the time of his guilty plea. A letter from BOP informed the d.ct. that an internal investigation of the doctor revealed sufficient evidence to question the credibility and accuracy of his psychological evaluations. The d.ct.'s holding at the plea hearing that the defendant was competent did not preclude relief because those findings were made before receipt of the BOP letter. If the doctor's report was the primary reason for the competency finding, the defendant would be entitled to collateral relief. The defendant had good reason for not raising the competency issue on appeal because the letter was sent after the appeal.

U.S. v. Crook, 2007 WL 182998 (1/25/07) - A example of the weakness of the Double Jeopardy Clause. It was okay to pursue an embezzlement prosecution under 18 U.S.C. § 666, even though the d.ct. dismissed for lack of evidence a previous embezzlement prosecution under 18 U.S.C. § 641 based on the same conduct. The d.ct. dismissed the § 641 charge because § 641 required the money taken to be U.S. property. § 666 doesn't have that element.

Heckard v. Tafoya, 2007 WL 241280 (1/30/07) - A previous 2241 petition challenging the petitioner's confinement conditions did not make petitioner's subsequent 2254 petition a successive petition that has to overcome ultra-difficult obstacles to be granted.

U.S. v. Richardson, 2007 WL 172192 (1/24/07) - The 10th feels compelled to follow a 10th Circuit case, U.S. v. Manjarrez, 348 F.3d 881 (10th Cir. 2002),which two of the three panel members seem to find questionable, [describing the result as "bizarre"], that a person who moves to the right without signaling to use certain toll booths in Oklahoma violates a state statute requiring the use of signals when exiting, even though such a move does not cross any lane lines and involves going back onto, not leaving, the highway. The two concurring judges noted that use of a signal might actually confuse other motorists.

Martinez v. Crank, 2007 WL 172213 (1/24/07) - In rejecting a prisoner's complaint about verbal abuse by a guard, the 10th says: "it could be that, despite the age-old saying words may be hurtful, nevertheless, something more akin to sticks and stones is required to state an 8th Amendment claim."

Durham v. U.S., 2007 WL 293515 (2/2/07) - The 10th denies the following claim without any discussion: the defendants surgically implanted "optical electron microcircuits" in teeth fillings and utilized the signals broadcast by these devices to monitor the plaintiff's location and speech to assist a larger project of investigating and prosecuting the plaintiff as an enemy combatant.

Thursday, February 01, 2007

10th Circuit Reverses Denial of Suppression Motion; Remands for Consideration of Exigency Doctrine

U.S. v. Walker, --- F.3d ----, 2007 WL 259661 (10th Cir. Jan. 31, 2007)

In the early afternoon a Roosevelt County sheriff’s officer was dispatched to an address on a state road where about 10 minutes earlier a caller said she saw two men with guns threatening to kill each other. When the officer located the address, he called the station and learned that the adult son of the home’s owner was at the sheriff’s office talking to another officer, but was unable to find out if the son said anything about anyone being armed.

The officer then knocked on the closed storm door and announced himself and when there was no response, opened it and knocked on the slightly ajar inner door, again announcing himself. After some moments, a voice from inside said “Yeah, and I got a goddamned gun.” Police entered, ordered the speaker–D--out with his hands up, cuffed him and put him on the front porch (but did not arrest him), and then conducted a sweep the house. During the sweep they found guns and ammo and D was charged with felon in possession.

The 10th upheld the district court’s finding no 4A violation for opening the storm door to knock on the inner door, and no violation in police entering the home because it was supported by exigent circumstances–D’s statement about having a gun was made in a threatening manner.

The 10th sent the case back for the district court to determine whether exigent circumstances justified the sweep, under United States v. Najar, 451 F.3d 710 (10th Cir.2006), as it relates to victim safety (i.e., the other person the caller said was present when the two men were threatening each other). The sweep was not justified as incident to arrest under Buie, since there was no arrest, and could not therefore be justified for officer safety reasons.