Wednesday, April 25, 2007

Traffic Stop Frisk Justified by Circumstances

U.S. v. Rice, -- F.3d --, 2007 WL 1180421 (10th Cir. 4/23/07) - Traffic stop was concededly justified at its inception by a tag light violation and its duration was not unreasonably extended by removal of Mr. Rice from the car. In the course of a routine traffic stop, the officer did not need reasonable suspicion to request Rice's ID, run a background check or remove him from the car. The totality of the facts, including an erratic driving pattern of slowing down, then accelerating repeatedly in a high crime area, supported the conclusion that Rice was armed and dangerous and that a pat-down search was needed for officer safety reasons. Rice's criminal record revealed a string of serious felonies. The back seat passenger's attempt to hide her identity suggested an effort to avoid detection of criminal conduct.

A few unpublished 10th tidbits and a cert grant.

First, the 10th:

U.S. v. Davila-Salvatierra, 2007 WL 1153753 (4/19/07)(unpub'd) - 70-month reentry sentence was reasonable, even though the defendant indisputably reentered to be with his dying mother.

U.S. v. Gonzales, 2007 WL 1113958 (4/16/07)(unpub'd) - The district judge did not abuse his discretion when he denied the defendant's motions to suppress and to disclose CI as untimely, where they were filed one business day before trial---after the motion deadline.

U.S. v. McIntosh, 2007 WL 1098677 (4/13/07)(unpub'd) - 65-month sentence for aggravated assault was reasonable, even though the jury sent a letter during deliberations that said: "the collective heart of this jury cries out, even demands, we speak. We the jury do not wish to send Mr. McIntosh to jail. We feel that this would not serve justice. We believe there is great love in his family." The jury went on to suggest mandatory alcohol abuse and anger management school and told the defendant he could choose to lead with love or with hate.

Gaston v. Ploeger, 2007 WL 1087281 (4/12/07)(unpub'd) - Sheriff was entitled to qualified immunity for jail inmate suicide, even though he did not offer jailers basic corrections classes until they had been employed for a year and one officer had received no formal training at all after working 18 months.

Graham v. Attorney General of Kansas, 2007 WL 1128963 (4/17/07)(unpub'd) - The petitioner was not entitled to habeas relief where the state presented evidence that he asserted the identical defense in two prior drug possession trials that he presented in the instant case---that the clothes he was wearing in which the drugs were found were not his.

Cert grant:

U.S. v. Santos, 2007 WL 173657 (4/13/07) - A question with a circuit split: whether money laundering statute, 18 U.S.C. § 1956(a), is violated when the defendant uses money to pay the expenses of the illegal enterprise, or must the defendant reinvest the net income from the illegal enterprise to violate § 1956(a).

Wednesday, April 18, 2007

Attempted Burglary Is "Violent Felony" for ACCA Purposes

James v. U.S., --- S.Ct. ----, 2007 WL 1135524 (April 18, 2007 U.S.)

In a 5-4 decision, the Court ruled that an individual convicted of attempted burglary under Florida state law has committed a "violent felony" for purposes of 18 U. S. C. §922(g)(1), and was an Armed Career Criminal, requiring a mandatory 15-year sentence. The offense falls within the “otherwise involves” provision defining a violent felony in 18 U. S. C. §924(e)(2)(B)(ii). Also, nothing in the language of the provision prohibits attempt offenses from qualifying as ACCA predicates when they involve conduct that presents a serious potential risk of physical injury to another. Moreover, “Congress’ inclusion of a broad residual provision in clause (ii) indicates that it did not intend the preceding enumerated offenses to be an exhaustive list of the types of crimes that might present a serious risk of injury to others and therefore merit status as a §924(e) predicate offense.”

In summary, neither the statutory text nor the legislative history discloses any congressional intent to categorically exclude attempt offenses from the scope of §924(e)(2)(B)(ii)’s residual provision.

Under the Taylor/Shepard categorical approach, the Fla. attempted burglary statute offense elements are of the type that would justify its inclusion within the residual provision. (In a troubling blurring of the lines, the majority cites for support in how the Sentencing Commission defines violent felonies in the guidelines).

Alito wrote for the majority. With Alito in the majority were Chief Justice Roberts and Justices Breyer, Kennedy and Souter. Scalia wrote the dissent and was joined by Ginsburg and Stevens. Thomas filed a separate dissent.

Scalia sees a problem with the majority’s approach because its determination of which crimes fit within the residual provision is “almost entirely ad hoc.” There is no concrete guidance to lower courts “to ensure that the ACCA residual provision will be applied with an acceptable degree of consistency by the hundreds of district judges that impose sentences every day.” Scalia notes that the majority did suggest that the district court should compare the offense at issue with the “closest analog among the four offenses that are set forth (burglary, arson, extortion, and crimes involving the use of explosives), and should include the... offense within ACCA if the risk it poses is comparable.” He decries the indeterminancy of the approach, compares James to the decision in Leocal that DWI is not a COV, and exhibits exasperation with the vague "otherwise involves” language of the statute.

Signaling a significant due process concern, he writes: “Imprecision and indeterminacy are particularly inappropriate in the application of a criminal statute. Years of prison hinge on the scope of ACCA’s residual provision, yet its boundaries are ill defined.”
In an interesting exploration, Scalia posits that under the majority approach, if attempted burglary is compared to the least serious enumerated offense, which to Scalia is extortion, and the question is asked: does attempted burglary present as serious a risk as extortion?, then his answer would be “no”, and as a result, attempted burglary could not fit within the residual clause.

Thomas dissents on grounds that this is unconstitutional judicial fact-finding to raise a D’s sentence.

CI Had Authority to Let Cops Into Storage Unit; Drug and Gun Convictions Affirmed

U.S. v. Trotter, --- F.3d ----, 2007 WL 1128851(10th Cir. April 17, 2007)

Ds, convicted of drug and gun counts, which involved cooperating witnesses, undercover cops and paid informants, raised a number of issues on appeal:

1. Suppression of evidence: A erstwhile co-conspirator turned informant let police into a storage unit Ds had confidential informant (CI) rent in CI’s name and to which they gave CI access, which held lots of bad evidence. Cops had no warrant and later obtained a warrant based upon what they saw there. 10th holds CI had actual authority to consent to police entry and no warrant was necessary.

2. Evidence sufficient on drug conspiracy and gun counts. Jury could reasonably find that handgun found in a locker in the storage unit where drugs and paraphernalia were kept was in furtherance of a drug trafficking offense in spite of D’s claim it was for personal security (also surveillance tapes showed that Ds conducted drug business inside storage unit).

3. Sentencing: unremarkable arguments and results.

1983 Case Based on Cop's Deceptive Entry Into Motel Room Reinstated

Butler v. Compton, --- F.3d ----, 2007 WL 1128867(10th Cir. April 17, 2007)

Pro se P filed a Sec. 1983 action against cop who P said used deception to gain entry into his motel room to make a warrantless search (familiar scenario...). Cop filed motion to dismiss saying deception was permissible and the district court agreed. First time around the 10th reversed and found that P had raised a cognizable 4A claim.

Second time around district court dismissed P’s complaint on ground that he had pleaded guilty to the offense discovered as a result of the police entry into his room. Under Heck v. Humphrey, 512 U.S. 477 (1994), that would bar P’s claim. During briefing, it became clear that P pleaded guilty to other charges, and those arising out of the entry into the motel room were dismissed in a plea bargain.

The 10th reverses the grant of summary judgment, and holds the district court erred in applying Heck. Heck bars civil litigants from using rules more liberal than habeas rules to attack a conviction. Here, P’s 1983 action does not implicate the validity of the charges that arose out of police entry into his room because they were dismissed.

Appeal Waiver Did Not Preclude of Resitution Order; Reversed Because Microsoft Suffered No Real Loss

U.S. v. Hudson, --- F.3d ----, 2007 WL 1128895(10th Cir. April 17, 2007)

D, who plead guilty under an appeal waiver agreement, to infringing a Microsoft copyright, appealed the $322,000 restitution order, on ground that Microsoft suffered no loss. (D sold multiple counterfeit programs to one buyer, well below retail price, who detected the fraud, refused to pay, and contacted Microsoft. The buyer was not out of pocket, and Microsoft never lost a product nor was there proof of loss of sales. Loss was calculated as the same number of copies of the real deal at retail price).

The 10th first determined that D did not waive his right to appeal a district court’s violation of the restitution statute.

On the merits, the 10th notes that restitution must be based on actual loss. There was no evidence of loss of a theoretical sale by Microsoft to the buyer. Reversal of restitution.

Trading Guns for Drugs Satisfies "In Furtherance" Req't of 924(c)

U.S. v. Luke-Sanchez, --- F.3d ----, 2007 WL 1128878 (10th Cir. April 17, 2007)

D who traded meth for guns was properly convicted of possessing a firearm in furtherance of a drug trafficking crime, 18 USC Sec. 924(c). The “in furtherance of” language was added in 1998 and the 10th holds that it encompasses trading guns for drugs. For the same reason, his objection to the jury instruction (can find hm guilty if he traded drugs for guns) fails.

Proof of "Foreign Commerce" Sufficient in Felon-in-Possession Case

U.S. v. Goode, --- F.3d ----, 2007 WL 1113957(10th Cir. April 16, 2007)

D was convicted of being a felon in possession of a firearm, which was manufactured in Spain and possessed in NM. He argued for the first time on appeal that the evidence did not meet the jury instructions that the gun, to meet the interstate commerce requirement, be moved “from state to state.” It could have come from Spain to Mexico to NM. Under a plain error review, and assuming it was error, the 10th finds that “this is one of those rare cases” in which the D's insufficient-evidence claim fails on the fourth element, because the error does not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Although the government may have failed to prove movement of the gun in interstate commerce, it proved it moved in foreign commerce, so that his possession of the gun “affected commerce” as charged in the indictment.

Section 1983 Case for Improper Involuntary Commitment Reinstated

Meyer v. Board of County Com'rs of Harper County, Oklahoma, --- F.3d ----, 2007 WL 1113953 (10th Cir. April 16, 2007)

P sued various officials, police, and individuals under Sec. 1983 after being involuntarily committed as mentally ill, for a weekend. Pretty outrageous set of facts–P complained to police officials that boyfriend beat her, they did not take her report, she confronted boyfriend and his sister and others at a family gathering, was not violent as all agreed, complied with police, waited in her car, decision was made to do a temporary commitment, she was committed with police statements that she had been violent and threatened others.

10th rules district court erred in granting summary judgment for Ds. The 10th summarizes involuntary commitment principles: seizure of a person for an emergency mental health evaluation is governed by Fourth Amendment reasonableness; probable cause is required to support an emergency detention for a psychiatric evaluation; probable cause means cause to believe that the individual poses a danger to himself or others. A state official is not entitled to qualified immunity if there is a genuine issue of material fact concerning whether a reasonable person would have believed the person to be a danger.

Here, the law is not so ambiguous that the police could think their actions legal. Additionally, there was a factual question regarding whether police lied regarding her dangerousness.

Additionally district court erred in summarily dismissing her First A rights claim: the ability to report physical assaults is an infringement of protected speech.

Bivens Claim Sent to District Court to Apply Correct Standard for Equitable Tolling

Roberts v. Barreras, --- F.3d ----, 2007 WL 1113956(10th Cir. April 16, 2007)

Pro se federal inmate brought Bivens action against Santa Fe County Adult Detention Center for exposing him to dangerous secondhand smoke and denying him access to legal materials, violating his constitutional rights. The 10th sent the case back once to the district court (J. Armijo) to determine if equitable tolling extended the period of limitations, thus making P’s filing timely. The district court found no reason to toll the SL, even though P attested to filing numerous administrative grievances, thus exhausting them, relating to his claim (grievances toll the SL) and the Detention Center admitted to not keeping track of all administrative grievances. Dist Ct. held P had not met his burden to show exhaustion.

The Supreme Court recently overruled the 10th Cir. requirement that a P must demonstrate administrative exhaustion, Jones v. Bock, 127 S.Ct. 910, 921 (2007), and now failure to exhaust is an affirmative defense that D must show. So, for equitable tolling of the statute of limitations, the burden lies with the plaintiff; to show administrative exhaustion, the burden lies with the defendants. READ the opinion if you have this issue but, bottom line: the district court applied the wrong burden, and 10th reversed and sent back for District court to allow defendant to raise the failure to exhaust defense.

Prosecutor Not Absolutely Immune From Sec. 1983 Suit

Mink v. Suthers, --- F.3d ----, 2007 WL 1113951 (10th Cir. April 16, 2007)

Damages claim under Sec. 1983 brought by student editor of internet journal which parodied a professor, against the assistant district attorney who, at the behest of the maligned professor (who claimed the student violated a Colorado criminal libel statute), seized and searched the student’s computer was not barred by absolute prosecutorial immunity. Absolute immunity does not extend to those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate, and in preparing the search warrant the prosecutor was acting in this case more in the role of an administrator. (Also, P’s challenge to the facial unconstitutionality of the libel statute was moot and he had no standing because the state from the outset declined to prosecute, and he did not raise a proper claim under the Privacy Protection Act).

Tuesday, April 10, 2007

Affirmance of Drug Trafficking Convictions, Reversal of Pre-Booker Sentence.

U.S. v. Nash, -- F.3d --, 2007 WL 1041400 (10th Cir. 4/9/07) - District court did not abuse its discretion in denying continuance and mistrial motions that involved discovery re: alleged misconduct of an OK City PD detective. Nash failed to show the necessity of a continuance or that his right to a fair and impartial trial was impaired. There was overwhelming evidence of guilt. While there was a Bruton violation re: a nontestifying codefendant's confession, the error was harmless. The district court committed constitutional Booker error several ways by enhancing Nash's sentence mandatorily on the basis of judicially-found facts and the error was not harmless. The district court expressly stated that if the guidelines were held unconstitutional, it would impose a substantially lower sentence. McKay dissents re: the Bruton error - he thinks it was not harmless and would have reversed.

Monday, April 09, 2007

Motion for Mistrial Based on Hearsay Testimony Rejected

U.S. v. Chavez, --- F.3d ----, 2007 WL 987404(10th Cir. April 4, 2007).

Chavez and Herrera (next snippet) were codefendants. District Judge allowed agent to testify about audio surveillance he overheard that D’s truck was present at the site of a drug buy, but then reversed herself after the agent testified, ruled the testimony was hearsay and in violation of the confrontation clause, struck the testimony and gave a (bad) curative instruction to the jury. The court denied the defendants’ motion for a mistrial.

Under a harmless error analysis, the testimony of a paid FBI informant covered all the same territory as the hearsay. However, this informant provided the ONLY other evidence, and that was good enough for the 10th.

In both this and the Herrera opinion, the 10th stresses that this prosecution was the result of a 4 year investigation. What's a little claim to due process when weighed against a four-year investigation by the government?

Sick Defendant Should Have Complained At Time of Trial; No Abuse of Discretion in Denying NT Motion

U.S. v. Herrera, --- F.3d ----, 2007 WL 987409(10th Cir. April 4, 2007).

The district court did not abuse its discretion in denying a new trial motion without an evidentiary hearing.

D, convicted after trial of drug trafficking, filed a motion for a new trial 4 months later based on newly discovered evidence that he was not competent during trial. He had been suffering a serious staph infection on his skin, feet, and backside before trial and as trial began, for which he was using a topical medication, and was diagnosed with diabetes the day after trial concluded. D attested that he had been in pain and unable to concentrate, and his attorney attested that D complained about his health and appeared to have difficulty concentrating during trial. D supported his motion with a medical opinion in general that onslaught of diabetes coupled with the staph infection could deleteriously affect cognitive abilities.

The district court denied the motion because: (1) the evidence was not newly discovered. The symptoms were known to D before trial, diabetes was suspected a year earlier, the fact that it was not conclusively diagnosed until the day after trial did not mean it was newly discovered. The 10th acknowledges, however, that some conditions–it lists mental conditions--and some fact settings certainly allow for post-trial diagnoses to qualify as newly-discovered evidence. (2) D did not raise a bona fide doubt under the totality of the circumstances that he was incompetent during trial. The 10th reviews the test, the evidence, the trial court’s determination: D claimed to have been delirious and nauseous during trial but neither D nor counsel brought this to the court’s attention, and the court observed no problems and observed D and his counsel communicating.

No Mistrial for Defendant Called as Witness by Co-Defendant

U.S. v. Templeman, --- F.3d ----, 2007 WL 987414 (10th Cir. April 4, 2007).

No abuse of discretion in denying mistrial to D whose pro-se co-D called D as a witness (D did not testify). Co-D did not intend it as a comment on D’s silence, the jury would not understand it as such, and the jury instruction dispelled any prejudice.

Equitable Tolling Leads to Remand for Habeas Petitioner

Fleming v. Evans, --- F.3d ----, 2007 WL 970163(10th Cir. April 3, 2007)

Pro se § 2254 petitioner successfully obtains a reversal of district court denial of his petition as untimely, and the 10th remands to the district court for an evidentiary hearing on whether P is entitled to equitable tolling of the 1 year time period under AEDPA for filing.

P had pleaded guilty in state court to count III before he went to trial and was convicted on count II. He did not appeal his guilty plea on count III or move to withdraw it, and the conviction for that count became final well before the conviction on count II.
He alleged ineffective assistance of state counsel, and alleged counsel failed to move to withdraw his guilty plea, as instructed, within the time limit allowed by state law. P did not discover his attorney’s failure until approximately a year and a half after he had been sentenced on his guilty plea. He argued that the 1 year AEDPA statute of limitations should be equitably tolled and started from the period he could be deemed to have reasonably discovered his attorney’s error. Still, he would be late in his federal filing.

P alleged that his federal habeas counsel lied to him regarding having filed his federal habeas within the year after he discovered state counsel’s ineffectiveness. Federal counsel failed to timely file, and P filed his own 2254. The 10th recognized that “egregious attorney misconduct” may constitute “extraordinary circumstances” that justify equitable tolling, and that P alleged sufficient facts to entitle him to a hearing on that issue.

Any equitable tolling that would apply to federal counsel’s errors in not timely filing on count III would apply to count II.

Finally, because P facially alleged the denial of a constitutional right, a COA is granted.

Tenth Holds Line on Applicability of Apprendi to Prior Convictions

U.S. v. Holyfield, --- F.3d ----, 2007 WL 970152(10th Cir. April 3, 2007)

10th rejected D’s Apprendi claim that the court violated his 6A right to a jury trial by determining without a jury trial that he had been convicted of two prior drug trafficking offenses (he had pleaded guilty to those offenses), thus requiring imposition of mandatory life on his current drug conspiracy conviction. First, even if Apprendi is deemed to apply to prior convictions, D’s argument fails because life was the statutory maximum for D’s conviction and the judge did not sentence beyond the maximum. For the same reason, D’s argument fails that the jury was required to determine issues regarding his recidivism, since one of his earlier convictions, from 1998, overlapped with the time period of the drug conspiracy for which he was convicted (1996 to 2000).

No Reasonable Expectation of Privacy in Private PC Defendant Brought to Work and Failed to Password Protect

U.S. v. Barrows, --- F.3d ----, 2007 WL 970165 (10th Cir. April 3, 2007).

No reasonable expectation of privacy in the personal computer D brought to work.

D, a city employee, brought in his own computer so that he and his co-worker did not need to share one computer. He networked his computer into the city system, put it on the shared desk in an open public place, did not have a password shield, left it running at all times, and allowed his co-worker to use it. The co-worker experienced problems with the city computer, asked assistance from a reserve cop using the city fax machine, who formerly had been a computer salesman. He fiddled with the city computer, suspected that the linked D’s computer was slowing it down, could not open a city file for co-worker, thought maybe it was open on D’s computer, fiddled with D’s computer, saw he was file sharing and YUP, you got it, saw kiddie porn files. The rest is history.

Particularly important in the workplace setting, in determining no expectation of privacy in his personal computer, was D’s failure to install password protection on the computer, turn it off, or take any other steps to prevent third-party use.