Tuesday, May 22, 2007

New Liberty Legend Available

The latest edition of the Liberty Legend, published by the National Association of Federal Defenders, is now available online at the Association's web site:
Main Site
2007 Newsletter

In this issue . . .
By Fran Pratt, Co-Chair of Amicus Committee, Research & Writing Attorney
Eastern District of Virginia, Alexandria
By Douglas A. Passon, Assistant Federal Defender, District of Arizona
By Eric Vos, Assistant Federal Public Defender, District of Maine

Thursday, May 17, 2007

Tenth Affirms Okla. Death Penalty Imposed after Robbery Goes Awry

Young v. Sirmons, --- F.3d ----, 2007 WL 1417284 (10th Cir. May 15, 2007)

10th affirms conviction and death sentence in a §2254 by an Oklahoma prisoner, convicted of murder one during the attempted robbery of an after-hours gambling operation in the back room of a restaurant. Trial evidence showed that Defendant and his co-defendant threatened the players with guns, one player struggled for the co-Defendant’s gun, the Victim then tried to shoot Defendant, and Defendant fired back, killing Victim. Defendant ended up with bullet wounds. The co-defendants were separately tried–the co-defendant was acquitted and Defendant got death. His issues and the 10th’s disposition of them are as follows:

1. Suggestive one-person show-up identification of Defendant at hospital: Okla. court did not rule contrary to Sup. Ct. Law in rejecting Defendant's claim by determining that even if the identification procedure was unnecessarily suggestive, it was admissible if it satisfied the five-factor test outlined in Manson v. Brathwaite, 432 U.S. 98 (1977), nor did the Okla. court unreasonably apply Manson in holding that the identification was reliable.

2. Sufficiency of evidence on Murder 1. The 10th found that the Okla. court’s application of the Jackson v. Virginia, 443 U.S. 307(1979) standard (whether, after viewing the evidence contained in the record in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt) was objectively reasonable. Defendant went into the restaurant with the intent to commit an armed robbery and shot Victim 4 times–sufficient to show malice aforethought. Sufficient DNA, blood and eyewitness evidence established Defendant was the shorter man and the man who shot the Victim.

3. Failure to give lesser included offense instructions on Murder 2 and voluntary manslaughter. Defendant argued that evidence supported Murder 2 on theory that he was at the robbery but did not fire his weapon (an Okla spin: if aiding and abetting it is Murder 1 but if not fire a gun it is Murder 2) ; or for voluntary manslaughter that it was a robbery gone awry, Victim fired first and Defendant fired back. Okla court determined that there was no evidence that Defendant did not intend to kill Victim during the robbery. 10th said it was not unreasonable for the Okla court to hold that a rational jury could not find Defendant did not fire his gun. For the same reason–Defendant had an intent to kill–the Okla court found that no rational jury could find Defendant guilty of voluntary manslaughter, and the 10th said this was not unreasonable on the evidence. Additionally, 10th cannot re-interpret Okla law which says that voluntary manslaughter is not available when defendant provokes the deadly situation in which a Victim shoots in self-defense and Defendant shoots back and kills Victim.

4. Ineffective assistance of counsel.
(a) for not introducing crime scene expert testimony that the co-Defendant fired the fatal shots. Expert testified at evidentiary hearing, and would have said if he had testified at trial that 3 guns were fired (Defendant's, co-Defendant's, Victim’s), but that it was likely the co-Defendant's gun fired the fatal shots (although his testimony regarding angle of shot could have supported prosecution case that Defendant shot). 10th certainly muddles the expert’s testimony, in part because there was poor crime scene work done by the local cops in preserving evidence. It agrees with the federal district court that Defendant did not meet the prejudice prong of Strickland “because of the nature of the evidence relied upon by the state to establish that Defendant may have fired the fatal shot, testimony by a crime scene re- constructionist could not have affected the outcome of the trial.”

(b) Ineffective Assistance of Counsel claims for not presenting mitigation evidence at the penalty phase on the environmental, cultural, and societal impact of growing up in south-central Los Angeles, California. The jury found 3 aggravating factors: (1) he had been previously convicted of a felony involving the use or threat of violence to a person (five years earlier he had been convicted of shooting into an occupied vehicle, second degree robbery, and assault with a firearm); (2) there was a strong probability that he would commit criminal acts of violence that would constitute a continuing threat to society; and (3) he knowingly engaged in conduct that posed a great risk of death to multiple persons. After some jumping through AEDPA hoops the 10th determined that the federal district court correctly held an evidentiary hearing on the issue, but then held that counsel’s investigation of mitigating evidence was not constitutionally inadequate. Counsel presented some evidence about Defendant's upbringing through his sister, who only emphasized the positive, however, and did not give any cultural, explanatory account of why he got involved in violent activity. Counsel apparently made a strategic decision not to get into Defendant's youthful gang activity, since it could have cut against him.

Tuesday, May 15, 2007

Entrapment Defense Denied in Machine-Gun Case; Tenth Requires "Compelling" Reasons to Justify Variance

U.S. v. Hildreth, -- F.3d --, 2007 WL 1404314 (10th Cir. 5/14/07) - Mr. Hildreth was not entrapped as a matter of law in his purchase of a machine gun from an undercover cop -- the government presented evidence that he was predisposed to commit the crime.

The court then moves right along to the government's cross appeal of a sentence of 3 years' probation where the guideline range was 27-33 months' imprisonment. The more divergence from the guideline range, the more "compelling" the district court's reasons and the more specific the explanation for divergence must be. The substantial divergence here required "compelling reasons," not cheesy reasons like long-term employment and support of family and low risk of danger to the public that the district court cited. The sentencing variance in this case "threatens to undermine uniformity in sentencing. . . " The Court of Appeals was not taken in by the district court's comment that the "problem with inform[ity] in sentencing is we don't have uniform defendants" and sees right through the district court's failure to distinguish Mr. Hildreth from defendants convicted of the same crime whose histories are similar.

Prison Nation

From the Sentencing Law and Policy blog by Prof. Berman, http://sentencing.typepad.com/sentencing_law_and_policy/

This commentary in the Huntsville Times provides a global perspective on the affinity for incarceration in the United States. Here are highlights:
Alabama's rate puts Pakistan, China and even Libya to shame. Myths have a way of hiding what we don't want to see. Americans, for example, are quick to charge third world dictators with abusive prison policies. But prison incarceration rates tell a different story. Recent reports show that 45 of the 50 democratically elected state governments in the US, including Alabama, imprison their citizens at a faster pace than any of the foreign governments headed by dictators.
Rulers in Libya, Zimbabwe, Saudi Arabia, China and Pakistan made Parade Magazine's 2005 world's worst dictators list. And the National Council on Crime and Delinquency, located in Oakland, Calif., has issued a report titled, "US Rates of Incarceration: A Global Perspective," showing the incarceration rates for these five dictatorships — the number of persons in prison for every 100,000 population — ranging from a low of 57 in Pakistan to a high of 207 in Libya.
By comparison, prison policies made in Montgomery locked up 591 state citizens for every 100,000 population in 2005. In other words, Alabama imprisons its people at a rate almost three times faster than Muammar al-Qaddafi's Libya and 10 times faster than Pakistan under Gen. Pervez Musharraf. If inmates held in local jails in Alabama were added in, the spread would be even wider.
Only five states — Maine, New Hampshire, Rhode Island, Minnesota and North Dakota — have prison incarceration rates less harsh than Libya's. All other states enforce prison policies that put dictators around the world to shame, including more than 600 inmates per 100,000 population in Louisiana, Mississippi, Oklahoma and Texas.

Thursday, May 10, 2007

Watch Out for Dealer Frames; Minimal Obscuring of License Plate Supported Stop

U.S. v. Cardenas-Alatorre, --- F.3d ----, 2007 WL 1334511 (10th Cir. May 8, 2007)

New Mexico requires that all portions of a license plate be legible. The cop, believing the statute was violated, stopped Defendant because his license was framed by a dealer frame which covered the state name of Arizona, but did not cover other pertinent identifying information, such as saguaro pictures, “Grand Canyon State,” plate numbers and the registration sticker. The stop turned into a request for consent to search and the discovery of drugs.

1. The 10th ducks Defendant’s as-applied constitutionally vague and over-broad challenge to the statute by determining that the cop acted in good faith and objectively reasonable reliance on the statute, and that his interpretation of the statute and application of it to the current case was reasonable. Indeed, according to the court, an officer should not consign to himself the role of determining whether a particular statute is constitutional and should simply enforce it. The court stated that the issue of whether the statute is constitutional remains open to challenge.

2. The 10th rejects Defendant’s alternative argument that because the statute had been complied with–all information necessary to determine registration was visible–the cop was unreasonable under the 4th amendment in stopping the car. It cites to the cop’s testimony that although the license appeared to be a valid Arizona license, he did not know if it was without seeing the state name on the plate. It rejects Defendant’s narrow reading of the statute that its only purpose is to require enough information by which police can determine validity of the license and registration.

3. Defendant’s reply to the cop’s request to ask him further questions (after all info re: license, car, driver checked out as OK) with the question “About?” was reasonably construed by the district court as a consent to further questioning.

Tuesday, May 08, 2007

Justification Defense in Felon-in-Possession Case Possible, But Unwarranted This Time

U.S. v. Butler, -- F.3d --, 2007 WL1314520 (10th Cir. 5/7/07) - although the court decides that a justification instruction is theoretically available in a § 922(g)(1) case, the district court properly refused to give the instruction under the circumstances here. While Mr. Butler may have been in imminent danger of death or serious bodily injury for four to six weeks from an individual who gave him a gun and insisted he carry out a murder, the plan was eventually abandoned. Butler waited two to four more days before turning the gun in to police. The evidence thus was insufficient to permit the jury to reasonably find the continuing urgent danger required to support a justification defense.

Cops Had PC to Search Overdue Rental Car

U.S. v. Brown, 2007 WL 1290149 (4/30/07)(unpub'd) - The officers had probable cause to search the car the defendant was driving, even though the officers could have eliminated their concerns that the car was stolen by simply calling the 800 number of the rental car company. Enterprise would have told the officers they orally granted the defendant an extension of time to keep the car. The officers were not required to investigate every claim of innocence or to perform an error-free investigation.

It's the Court's, not the Witness's, Job to Determine if Witness is an Expert

Watson v. U.S. 2007 W 1300693 (5/4/07)(published) - In a civil suit on behalf of a prisoner rendered a vegetable due to a less than rapid response to the prisoner's intracerebral hematoma, (including 15 minutes or more for the ambulance crew to get security clearance in and out of the prison), the government's witness was qualified to testify as an expert, even though he himself didn't consider himself an expert. It was the judge's job, not the witness's, to determine if the witness was an expert. The 10th thought it problematic if a witness who was truly an expert could not testify because the witness was too "self-deprecating" and "demure to trumpet his or her qualities."

Thursday, May 03, 2007

District Court Should Have Allowed Defendant to Seek Discovery on Rule 33 Claim

U.S. v. Velarde, --- F.3d ----, 2007 WL 1252482 (10th Cir. May 1, 2007)

District court erred in failing to allow Defendant to pursue discovery on his Rule 33 claim of newly discovered evidence, when it determined that the evidence was not admissible and not material. Defendant had been convicted of aggravated sexual abuse of his girlfriend’s child. Shortly after his conviction (after a re-trial), in which the child testified against Defendant, he learned that the child had accused a schoolteacher and vice principal just before the retrial, of improper touching (Defendant’s related Brady claim arose from school officials claiming they had informed the FBI of this which the agent denied). Defendant’s defense had been that the child made a false accusation to get her way, and that appeared to be her MO in accusing her teacher.

Defendant’s evidence in support of his R. 33 motion fell short because the district court cancelled the evidentiary hearing and Defendant was unable to subpoena–compel–the reluctant school witnesses to a hearing, and was otherwise unable to compel then to give affidavits. D’s showing was through the affidavit of his investigator.

Analogizing to habeas cases, the 10th construed Defendant’s request for issuance of subpoenas as a request for discovery (and warns that in future such situations, the Defendant MUST request discovery or the issue will be waived). Discovery is warranted because there is a firm basis for believing the evidence Defendant sought exists.

The decision is worth careful reading where the 10th weighs in on the admissibility of the evidence. It acknowledges that there probably are barriers to allowing the extrinsic evidence in unless the child denied accusing the teachers on direct exam, assuming a new trial. It is unlikely the government would ask her that question. So, Defendant could only inquire of it on cross, but not introduce the extrinsic evidence. But interestingly, the 10th skirts the “merely impeaching” aspect of the newly discovered evidence rule, and says that discovery, if Defendant had been allowed to engaged in it, might have issued more information he could use on cross examination to attack the child’s credibility which, in this case was key, and the only thing that Defendant’s conviction rested upon.

Tuesday, May 01, 2007

Father Had Apparent Authority to Consent to Search of Adult Son's Computer

U.S. v. Andrus, --- F.3d ----, 2007 WL 1207081(10th Cir. April 25, 2007)

91 year old father’s consent to search son’s computer in the son’s bedroom in the family home was given with apparent authority to consent to a search. Father said he did not go into the bedroom when the door was closed, but if the door was open he felt he could walk in. Door was slightly open when cops got there at 8:30 in the morning–son was at work. ICE computer geek immediately ran software that bypassed the password security.

First the 10th determines that personal computers, like closed suitcases, command a high degree of privacy. Then, in examining third party consent to search a computer, the court will look to whether officers had knowledge about password protection, as an indication of whether a computer is “locked” in the way a footlocker would be; where the computer is located in the house; and other household members’ access to it. The 10th stated:
“The resolution of this appeal turns on whether the officers' belief in [the father's] authority was reasonable, despite the lack of any affirmative assertion by [the father] that he used the computer and despite the existence of a user profile indicating [the D’s] intent to exclude other household members from using the computer. For the reasons articulated below, this court concludes the officers' belief in [the father’s] authority was reasonable.”
The test: “whether the surrounding circumstances could conceivably be such that a reasonable person would doubt [the father’s consent] and not act upon it without further inquiry.”

No 4th Amendment Violations Found in Section 1983 Action

Reeves v. Churchich, --- F.3d ----, 2007 WL 1196502 (April 24, 2007)

In a 1983 action, Plaintiffs sued police who had come to a duplex to look for and question a possibly armed man wanted for beating his wife. Plaintiffs lived in the downstairs apartment, and alleged that police violated their 4th Amendment rights in various ways when police pointed guns at them and gave them various commands.

The 10th upholds the district courts determination that police had qualified immunity because there were no Fourth Amendment violations.
1. Although police pointed guns at the Plaintiffs and gave them verbal commands, Plaintiffs did not “submit” to the orders and there was therefore no Fourth Amendment seizure.
2. Insertion of police rifle barrel through open, unscreened but barred window was not a search. Officer was not on curtilage when that occurred, the window was open so there was no expectation of privacy in what could be seen through the open window, and the rifle barrel was not a detection device.
3. In the context of the overall encounter, Plaintiffs were not seized within the meaning of the Fourth Amendment. Plaintiffs actions belied that they thought they were not free to leave or that their movements were otherwise restricted.

EVEN IF there had been a seizure, it was objectively reasonable. Police were on premises to apprehend a possibly armed individual for whom they had probable cause to arrest and did not know Plaintiffs' relationship to that person. They trained their guns on Plaintiffs for only a brief time until it was determined they had no relationship with the person they were seeking. One of the Plaintiffs was interfering, so it was reasonable to order her back to her apartment.

Remand for New Sentencing Before Different Judge Granted Based on Gov't Violation of Plea Agm't

U.S. v. Cachucha, 10th Cir. No. 06-2215 (WL number not available) (4/26/07) - The 10th holds that the prosecutor violated the plea agreement stipulation to an offense level of 12 in a 2000 involuntary manslaughter case when he repeatedly complained about how low the 2000 guidelines were and stated the judge's initially-imposed upward departure was supported by the grounds the judge (Johnson) relied upon. In dicta, the 10th helpfully stated that the defendant's ex-post-facto/due process objections to the d.ct.'s upward variance under Booker discretion based on post-offense guidelines, (among other things), were not necessarily foreclosed by 10th Circuit law, because no court had yet decided whether due process is violated when a post-Booker sentence is higher than might realistically have been imagined at the time of the pre-Booker offense. Also in dicta, the 10th opined that the d.ct.'s reliance for the upward variance on New Mexico sentencing practice seemed to violate U.S. v. Branson, 463 F.3d 1110, 1112 (10th Cir. 2006), which held state sentencing practices were irrelevant.

U.S. v. Martinez, 10th Cir. No. 06-1226 (WL number not available)(4/26/07)(unpub'd) - "Minor discrepancies" [the 10th's description] between the passenger's and the driver's travel story, e.g. one said their destination was 20th Street and the other said 20th Avenue, supplied reasonable suspicion to extend the traffic detention.