Restitution Claim Not Barred by Appeal Waiver; District Court Ordered Too Much

U.S. v. Gordon, --- F.3d ----, 2007 WL 915074 (10th Cir. March 28, 2007)

Defendant did not waive her right to appeal a restitution order that she claimed was unlawful under the Mandatory Victim Restitution Act (MVRA). Applying contract principles that ambiguities in a plea agreement are construed against the drafter, that one reads the agreement as a whole, and “if the principal purpose of the parties is ascertainable, it is given great weight,” the 10th determined that in her plea agreement, Defendant waived her right to appeal only those “aspects of her sentence and restitution that were imposed within the authority granted to the district court by the relevant statutes.” She did not waive her right to appeal an unlawful order.

In potentially useful language, the 10th stated that “we question whether [the Defendant] could have waived her right to appeal an unlawful restitution order, even if she wanted to do so.” (Unlawful because beyond statutory authorization).

In more useful language: “Furthermore, we must construe the plea agreement against a general backdrop of legality. ...This means that we should presume that ‘all promises made were legal, and that the non-contracting ‘party’ who implements the agreement (the district judge) will act legally in executing the agreement.’ Surely then, [the Defendant] was also entitled to presume, when she entered the plea agreement, that the judge would order restitution in a legal manner.”

On the merits: The maximum amount of restitution under the Mandatory Victim Restitution Act is the amount causally linked to the offense of conviction. The district court unlawfully ordered restitution to victims of credit card frauds for which the Defendant did not plead guilty.
Timkovitch dissented on grounds that in interpreting the plea agreement, Defendant did agree to pay all victims under the terms of the agreement and thus waived her appeal rights.

Officer Did Not Violate 4th Amendment by Issuing Citation and Threatening Jail if Citation Unsigned

Martinez v. Carr, --- F.3d ----, 2007 WL 901922 (10th Cir. March 27, 2007)

10th reversed district court in §1983 case. 10th rules that officer’s issuance to Plaintiff of a criminal citation and threatening jail if Plaintiff declined to sign the citation was not a seizure for fourth amendment purposes. The officer sued did not initiate the detention of Plaintiff, so the claim against the officer was limited to his actions: issuing the misdemeanor citation and the warning about jail. The statute under which the citation was issued specifically gave the accused the option of signing the citation or going to jail, and the statute required the officer to inform Plaintiff of that option.

Imposing Supervised Release Contrary to All Parties' Request OK

U.S. v. Rodriguez, 2007 WL 841640 (3/21/07)(unpub'd) - The 10th affirms d.ct.'s refusal to grant the request of the defendant, government and probation office to give a longer prison sentence and no supervised release. Instead, d.ct. imposed 30 months of supervised release, saying: "I never lose hope... When you go to hell, then you lose all hope. I don't think he's there, so I don't lose hope."

District Court Did Not Abuse Discretion In Rejecting Fast-Track Plea Agreement

U.S. v. Macias-Gonzalez, 2007 WL 841625 (3/21/07)(unpub'd) - The district court rejected a plea agreement calling for a sentence below the guideline range pursuant to the fast-track, because the government's fast-track policy prohibited giving a fast-track plea to the defendant, who had a prior crime of violence. The d.ct. offered to reject the plea agreement and deviate to the same sentence contemplated by the parties. The defendant agreed to that deal, but then appealed in hopes of getting an even lower sentence. The 10th held the d.ct. did not abuse its discretion in rejecting the plea because by doing so, the d.ct. helped to maintain the integrity of the fast-track program, which benefits the courts, as well as the government.

Jury Instruction in Possession of Pseudoephedrine Case Error, But Not Plain

U.S. v. Whaler, 2007 WL 841643 (3/21/07)(unpub'd) - The 10th indicates the d.ct. erred in its instruction to the jury regarding the offense of possessing pseudoephredine knowing or having reasonable cause to believe it would be used to manufacture meth. The instruction arguably encouraged the jury to focus on the knowledge of a hypothetical reasonable person, when the standard should be subjective [requiring evaluation of scienter "through the lens of the particular defendant"]. But, any error did not meet the high standard for reversal of plain error. The evidence focused generally on the "knowing" prong not the "reasonable cause" prong.

In Split Opinion, Tenth Circuit Affirms 292-month Sentence

U.S. v. Madrid, 2007 WL 806930 (3/19/07)(unpub'd) - Without mentioning US v. Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006), Judges Hartz and Murphy hold that Judge Conway's failure to address at all the defendant's argument for a sentence below the guideline range was okay. The majority strongly presumes that a district judge, especially an experienced one, knows and applies the law. The majority recognized a 292-month sentence was "quite harsh," but not unreasonable given that harsh sentencing for drug offenses is clearly federal policy. In dissent, Judge Holloway opines that Sanchez-Juarez required reversal because he could not discern from the record whether the d.ct. relied on the guidelines alone.

Tenth Reverses Upward Variance

U.S. v. Acevedo, 2007 WL 853199 (3/22/07)(unpub'd) - The 10th reverses for plain error an upward variance due to an inadequate explanation to justify the variance. It was not enough for the d.ct. to simply say it adopted the government's variance arguments and found the criminal history category under-represented the seriousness of the defendant's criminal past, especially when the d.ct. went 12 months higher than the government requested. The 10th explained: "U.S. v. Atencio, 476 F.3d 1099 (10th Cir. 2007), has elevated the procedural requirements in sentencing." A word to our wise trial lawyers in the trenches: the 10th held the defendant's objection to the upward variance did not preserve the issue whether the d.ct. adequately explained the reasons for the variance.

Unpublished Decisions Address Waivers, 2255 Petitions in Military Court, Arrest Warrants

West v. Ortiz, 2007 WL 706924 (3/9/07)(unpub'd) - The 10th makes exception to rule that raising an issue for the first time in a reply brief waives the issue where the S.Ct. issued a new decision and the government had a chance to address the issue in supplemental briefing.

U.S. v. Triplett, 2007 WL 779282 (3/16/07)(unpub'd) - The plea appeal waiver was enforceable on appeal of a resentencing, even though the government had waived its right to enforce the waiver during the first appeal.

Ackerman v. Novak, 2007 WL 766289 (3/15/07)(unpub'd) - The 2255 procedural restrictions do not apply to challenges to a military court-martial judgment because a military court is not a "court of the United States" under 2244 and 2255.

U.S. v. Foutch, 2007 WL 706939 (3/9/07)(unpub'd) - Officers with an arrest warrant had a reasonable belief the defendant was in the home, despite seeing a male run from the home when they announced their presence, where the woman answering the door was equivocal about his presence there.

U.S. v. Curls, 2007 WL 646153 (3/5/07)(unpub'd) - Curiously, while the 10th rejects an argument, it mentions that the same attorney raised the same argument in another case. The 10th holds that the failure to note the grand jury foreperson's name on the indictment does not violate the defendant's right to a public trial.

State of Oklahoma v. Smith, 2007 WL 646155 (3/5/07)(unpub'd) - The 10th refuses to remove the case to a "one Supreme Court" of the plaintiff's own making, established by the plaintiff and his associates after the case was remanded from federal court to state court.

Former Girlfriend Had Apparent Authority to Consent to Search of Defendant's Home

U.S. v. Crabb, 20007 WL 779280 (3/16/07)(unpub'd) - A woman had apparent authority to consent to the search of the defendant's home. By virtue of his response to a prior domestic violence call, an officer had knowledge that the woman and the defendant had been romantically involved in the past and had lived together at one time at a different residence. The woman did nothing to dispel the officers' reasonable belief she had authority. Without prompting, she invited the officers into the home.

Section 1983 Case Remanded

Freeman v. Watkins, 2007 WL 7729273 (3/16/07) - The 10th reverses another § 1983 exhaustion denial due to the S.Ct.'s abrogating 10th precedent on the matter in Jones v. Bock, 127 S.Ct. 910 (2007). The 10th gives an out to the d.ct. by noting that, if it is clear from the face of a complaint that the prisoner has failed to exhaust remedies, then the d.ct. can raise the issue sua sponte and seek additional exhaustion information from the prisoner.

No Discharge in Bankruptcy of Restitution Ordered in State Criminal Case

In re Troff, 2007 WL 766277 (3/15/07) - Restitution ordered as part of a state court criminal judgment cannot be discharged in bankruptcy. Congress has already precluded discharge for federal restitution. The 10th followed the S.Ct.'s decision in Kelly v. Robinson, 479 U.S. 36 (1986), that went beyond the plain language of the statute, which precludes discharge only for a "fine, penalty, or forfeiture for the benefit of a governmental unit" and decided restitution was "for the benefit of the government." The 10th rejected the debtor's distinction from Kelly that in this case the restitution was transferred to the victim, who was not a governmental unit. The federalism concerns of Kelly still ruled the day. In his concurrence, Judge Tymkovich expresses dismay that the 10th had to follow a S.Ct. case that took into account policy concerns that broadened the plain language. He suggested the S.Ct. should grant cert in the case.

Wiretap, Traffic Stop, Sentencing Challenges Rejected in Meth Case

U.S. v. Ramirez, 2007 WL 779260 (3/16/07) - The 10th upholds wiretap. There was probable cause: an unchallenged wiretap revealed conversations between the defendant (Ramirez) and another person discussing drug deals and pen register indicated calls to the defendant by someone during a drug deal. The government proved necessity: it specifically showed how it tried visual and aural surveillance, a confidential source and search warrants and pen registers and it showed trying interrogation or using the grand jury would compromise the safety of witnesses and the investigation. The government proved it minimized: "we review minimization for reasonableness of the efforts, not the perfection of the results."

There was reasonable suspicion to extend a traffic stop where: the defendant's truck was stopped outside a home associated with drug-dealing; the defendant entered the home for an extremely short time; the officer knew of the defendant's participation in drug-trafficking; the defendant and the resident of the home gave different reasons for the defendant's short visit; and the defendant was more nervous than he usually was during his other encounters with the police officers.

Cell phone receipts were inadmissible because they could not be considered adoptive admissions: the receipts in the defendant's (Vasquez) possession were only a week old, the defendant's name was not on the bill; and the defendant was not in possession of the cell phones. But, the admission of the receipts was harmless. Their admission also did not plainly violate the Confrontation Clause because receipts from a private business transaction are not testimonial and the receipts were not plainly unreliable. (It's interesting the 10th engaged in a reliability analysis for nontestimonial evidence because I thought Davis meant nontestimonial evidence was not governed by the Confrontation Clause; I guess I was wrong). Co-conspirator statements are not testimonial and never violate the Confrontation Clause.

The evidence was sufficient against various defendants. With respect to Lopez, although the government did not prove he had control over the apartment where the meth was found, (old bills and car title in his name, and photos could just be "common detritus" left behind after Lopez left), the overheard conversations of jailed co-conspirators urging Lopez to get rid of the meth in the apartment demonstrated his ability to collect and transfer the meth. Lopez's storage unit with drug paraphernalia and his conversations regarding drugs were enough to prove his participation in a drug conspiracy. With respect to Mozqueda-Ramirez, while his references to a "white Camaro" and "a Brave One," may not be enough, his conversations with numerous other coded references to drugs was enough. With respect to Vasquez, a drug ledger referring to him, his drug-coded conversations and references by co-conspirators to him were enough.

Mozqueda-Ramirez failed to prove the existence of a "complete breakdown" in the attorney-client relationship to justify withdrawal of attorney two weeks before complicated trial.

Booker did not affect mandatory minima and did not prohibit judicial fact-finding resulting in a higher advisory guideline range.

District Court Failed to Explain Why Defendant with Low IQ, Delusions, Could Be Medicated to Competency

U.S. v. Valenzuela-Puentes, 2007 WL 766273 (3/15/07) - An involuntary medication victory. The 10th held the d.ct. failed to explain why it was convinced the defendant could be rendered competent through medication, despite his exceptionally low IQ (73 & 76) and entrenched delusional thought patterns (the government employed him as a "federal runner" and he was a citizen of a single country composed of the U.S., Mexico and Canada)(does that inspire some new defenses?). Also, it was not clear the d.ct. had required the government to meet its clear and convincing burden. The 10th did say the prosecution of a reentry case served an important government interest based on the length of the statutory maximum sentence, even though the offense was nonviolent. The 10th expressed unease with the defendant's three-and-a-half-year pretrial detention.

Published Decisions

U.S. v. Helmstetter, --- F.3d ----, 2007 WL 744634 (10th Cir. March 13, 2007)

The 10th declines to overrule its precedent that use of a peremptory challenge based on age of the juror does not raise an equal protection, Batson-type issue–a position reached by all circuits which have ruled on the issue.

No 6 A violation–district court did not restrict D’s cross examination of co-D about her drug use; it only granted the co-D’s motion in limine regarding the government’s cross on the topic, and left it open for further ruling regarding D’s cross. D never tried to cross her on her drug use. No DP violation in court’s restricting D from testifying about co-D’s drug use.(Theory in counterfeiting case: he doled money out to her to control her from using it on drugs, unaware that it was counterfeit–he was not forcing her pass the money). D was allowed to testify of his concern about her inability to control her finances and the inquiry was of very low relevance but prejudicial to co-D.

West v. Keef, --- F.3d ----, 2007 WL 756433 (10th Cir. March 14, 2007)

Violation of state law (in this case emergency detention of mentally ill) does not, without more, entail a federal violation of due process. Police had probable cause and exigent circumstances to enter the home without a warrant when P’s 12 year old son called 911 and said his mother was trying to kill herself. Police observations of a generally unresponsive P slumped over the sink with a knife provided the exigent circumstances for her detention.

KS Dept. of Corrections Policy Allows Parolee Searches only on Reasonable Suspicion; Gun Found Suppressed

U.S. v. Freeman, 2007 WL 689521 (3/8/07) - Privatization at its best. An employee of a Kansas private parolee monitoring firm, along with some regular police officers, knock on a parolee's door at 1:00 a.m. to check the parolee's ankle bracelet and, by the way, search the house. When informed by the officers of their intention and right to search the house, the parolee becomes agitated. The parolee hurries to the bedroom to tell his girlfriend about the unwelcome visitors. He tells the officers he's concerned she might be undressed. An officer tells him he can only talk to her from outside the bedroom. The officer peeks into the bedroom and sees the girlfriend reaching for something in the dresser. The officers search the house and find a gun, among other things.

Fortunately for the parolee, internal management policies of the corrections department authorized searches only by "Special Enforcement Officers" ("SEO") and only on reasonable suspicion. Because the police officers searched without any participation by an SEO and without reasonable suspicion, the search was illegal. The 10th held the parolee's agitation and resistance to the search cannot be grounds for reasonable suspicion, especially where many innocent men would be upset when officers barge in early in the morning while their girlfriends are possibly undressed. The girlfriend's reach for the dresser was consistent with being rousted at 1:00 a.m. and innocently reaching for a watch, glasses, robe, etc. Reliance on the parolee's criminal history and past association with gangs would mean there were no limits on searches of parolees. The search could not be justified as a protective sweep because the search was not incident to an arrest. Even if 10th Circuit law requiring such a sweep to be incident to an arrest was overturned, the 10th doubted any grounds existed for a belief another person in the residence threatened officer safety.

Fast-Track vs. Non-Fast-Track Disparities Not Unreasonable; Sanchez-Juarez Further Limited

U.S. v. Jarrillo-Luna, -- F.3d --, 2007 WL 646145 (10th Cir. 3/5/07) - Continuing its backtracking from Sanchez-Juarez, the COA concludes the district court did not err in failing to explain why it rejected arguments for a below-GLs sentence. A sentencing court is required merely to entertain the defendant's arguments and give reasons for the sentence imposed. It need not explain why it decided a different sentence would have been unreasonable or why the sentence imposed is the best of all possible reasonable sentences. On appeal, the court must simply determine whether the chosen sentence is reasonable. With respect to Mr. Jarrillo's substantive argument, the COA says the disparity between fast-track districts and non-fast-track districts was created by Congress, so it can't be "unwarranted" disparity under § 3553(a)(6).

2255 Not Proper Means to Challenge Restitution Order; Ringing Cell Phone Did Not Improperly Disrupt Sentencing

U.S. v. Satterfield, 2007 WL 603050 (2/28/07)(unpub'd) - A prisoner cannot challenge a restitution order through 2255 because he is not claiming the right to be released.

U.S. v. Doe, 2007 WL 603058 (2/28/07)(unpub'd) - As the d.ct. began to explain whether a variance was appropriate, a cell phone rang in the courtroom. Right after the d.ct. ordered the person with the phone out of the courtroom, the d.ct. simply imposed sentence. The 10th affirms the sentence on the grounds that the d.ct. understood its authority to vary based on the defendant's cooperation, despite the lack of a government 5K1.1 motion. The interruption of the d.ct.'s explanation regarding the requested variance did not matter.

State Plea Agreement Did Not Stop Related Federal Prosecution in Meth Case

U.S. v. Sells, 2007 WL 614262 (3/1/07) - The state plea agreement of one of the defendants did not preclude the government from pursuing related charges, despite the defendant's belief the DA was communicating with federal authorities. State defense counsel conceded he knew the DA was not authorized to speak for the feds, the government did not sign off on the plea and defense counsel never spoke to the feds.

There was sufficient evidence a defendant conspired with others to manufacture and distribute meth where evidence showed the others helped the defendant to distribute and manufacture meth. A defendant charged with a conspiracy with multiple objectives may be convicted based on proof the defendant conspired to commit any one of the objectives.

A fatal variance from the indictment did not occur when the government introduced evidence of meth in the residence of another person, even though the defendant had nothing to do with that meth. The indictment charged the defendant with manufacturing on an entire piece of property, including that person's residence. That the part of the property the defendant used was smaller than alleged in the indictment did not prejudice the defendant. It was highly unlikely the jury attributed the evidence to the defendant. That evidence was irrelevant because the government never showed the defendant's connection to the residence. But, no reversal for the admission of that evidence due to harmlessness.

The constitutional error in one defendant's case when the d.ct. determined the drug quantity involved in a mandatory guideline system was harmless beyond a reasonable doubt. The quantity was based on co-conspirators' testimony and corroborating evidence. While the credibility of the testimony was challenged, the jury's verdict indicated the jury believed the co-conspirators. The non-constitutional error was harmless for the defendant whose sentence was above the bottom of the guideline range. The constitutional error was concededly not harmless for the defendant whose sentence was at the bottom of the range. Also, the 10th instructed the d.ct. when it reconsiders the drug quantity attributable to one of the defendants that it consider the scope of the criminal activity the defendant agreed to undertake and the total amount of drugs that was foreseeable to that particular defendant.

Bouncer's Request to Officers Gave PC to Arrest

Kee v. Ahlm, 2007 WL 625633 (3/2/07) - The officers had probable cause to arrest the plaintiff when one of the bar bouncers told the officers to eject plaintiff from the bar. The d.ct. was wrong to view the probable cause question from the perspective of the plaintiff who did not think he was told to leave. The 10th overturns a jury verdict for the plaintiff and remands for a jury to consider only the excessive force damages.

Although Not Ideal, Possession Instruction Sufficient

U.S. v. Jameson (Christopher, not Tom), 2007 WL 614267 (3/1/07) - There was sufficient evidence the defendant possessed a gun when the gun was in a jointly occupied car. Although proximity to the gun is not enough, here the gun was found in plain view where the defendant's feet had been and when the car was stopped the defendant leaned forward as though he was hiding something underneath the seat in front of him.

The 10th expresses a preference for an instruction that explicitly states the government must prove a connection between the particular defendant and the firearm and mere proximity to the firearm is insufficient to establish possession. But, the d.ct.'s failure to give such an instruction was not reversible error because it sort of said the same thing when it said being present with others who possess the object is not possession and momentary control of an object without criminal intent is not possession. There could be a case where the d.ct. must instruct on nexus, but not here where there was a "significant quantum" of evidence aside from presence and proximity.

Two "momentary" references to a bayonet lying on the seat where the defendant had been sitting did not warrant a mistrial because the references did not confuse the jury about whether the defendant should be convicted for possessing the bayonet as opposed to the gun.

Non-Spanish Speaking Agent's ID of Defendant's Voice Admissible

U.S. v. Zepeda-Lopez, 2007 WL 625581 (3/2/07) - The 10th essentially okays the admission of any voice and visual identification by officers. An agent's identification of a voice on an audiotape as that of the defendant was admissible under Fed. R. Evid. 901(a), although the agent did not speak Spanish, which was the language on the tape. It was enough that the agent listened to the baseline tape of the defendant and heard the defendant at a pretrial hearing in court. Similarly, the agent could identify the defendant on a videotape, even though the officer was not at the scene depicted in the video. The agent's identification was corroborated by the agent's observation of the defendant in court. Didn't the agent's testimony usurp the role of the jurors who also could listen to the defendant's testimony and observe him in court, you might ask? No, the 10th says. The government didn't know the defendant would testify and expose his voice to the jury until after it presented its case in chief. And, unlike the jury, the agent reviewed the videotape "many times."

PC Existed to Stop White-Colored Truck Even Though Informant ID'd a Black Truck

U.S. v. Traxler, 2007 WL 614266 (3/1/07) - The officers had probable cause to stop a truck, even though the "credible" informant said the truck was black when the defendants' truck was white. A number of facts corroborated the informant, including the arrival of a pickup truck of the make and model alleged by the informant, the truck's rendezvous with a car registered in Arizona from which state the informant said the drugs were coming and evasive driving techniques.

The following statements by the judge to the defendant did not violate due process or the First Amendment: "The fact is, good things can come from jail. A guy named Paul was put in jail a couple thousand years ago and wrote a bunch of letters from jail and people are still reading those letters and being encouraged by them. Good things can come from jail and I hope they will in your experience." The record did not show the judge's personal religious views influenced the defendant's sentence. The judge did not indicate the defendant needed to endure a harsher sentence to pay religious penance.

In this post-Ruiz-Terrazas opinion, the 10th does not refer to that case. In agreement with Ruiz-Terrazas, the 10th holds plain error review applies where the defendant did not object to the d.ct.'s failure to refer to § 3553(a) factors. But, in contradiction of Ruiz-Terrazas, the 10th holds a non-frivolous motion for a below-guideline-range sentence requires the d.ct. to address the substance of the defendant's argument, although it does not have to refer to every § 3553 factor. The d.ct. complied with its obligations. It gave reasons for not going below the range and incorporated the PSR that referred to § 3553(a) factors.