Thursday, June 28, 2007

Immigration Clerk Who Embezzled Processing Fees Did Not Occupy Position of Trust

U.S. v. Spear, --- F.3d ----, 2007 WL 1821028 (10th Cir. June 26, 2007)

Defendant, who as a processing clerk for the US Citizens and Immigration Bureau embezzled application fees paid by change of status applicants, pleaded guilty to embezzlement but, because in her job position she did not exercise professional or managerial discretion she did not occupy a position of trust (and supervisor’s letter opining that Defendant was in a position of trust did not change that reality). The district court incorrectly added 2 points for abuse of a position of trust to her guidelines, requiring a reversal and remand. ALSO, sentencing occurred before Atencio decision, so court’s failure to give notice it was increasing the GL sentence by 2 months required reversal.

Wednesday, June 27, 2007

No Liberty Interest in Prisoner's Classification Level

Cardoso v. Calbone, 2007 WL 1739694 (6/18/07)(published) - The prisoner did not have a liberty interest protected by the Due Process Clause in the reduction in his classification level, even though the reduction resulted in a significant loss of good time earning potential. Due process was not implicated because the reduction was not mandatory resulting from a prison determination, but rather it was based on a discretionary prison decision.

Aggressive Pat-Down Not An 8th Amendment Violation

Rhoten v. Werholtz, 2007 WL 1765538 (6/20/07)(unpub'd) - The use of force during a pat-down that consisted of squeezing a prisoner's nipples real hard, squeezing his buttocks and pulling real hard on his testicles was de minimis and therefore not worthy of Eighth Amendment protection.

Restrictions Imposed Without Adequate Notice Reversed

U.S. v. Verner, 2007 WL 1776351 (6/21/07)(unpub'd) - The 10th follows U.S. v. Bartsma, 198 F.3d 1191 (10th Cir. 1999), and reverses the imposition of sex offender restrictions that were imposed without adequate notice. Bartsma applied because the sentencing occurred before Bartsma was overruled by U.S. v. Atencio, 476 F.3d 1099, 1105-06, n. 6 (10th Cir. 2007).

Long Sentence for AIDS Patient Affirmed

U.S. v. Luna, 2007 WL 1776345 (6/21/07)(unpub'd) - The defendant's sentence was not unreasonable, even though he suffered from AIDS and was therefore unlikely to live long enough to serve out his term. The 10th suggests that, given the defendant's limited financial resources, he may be more likely to receive the medical treatment he needs while in prison. A very sad commentary on our health system.

Joy-Riding is an Aggravated Felony

U.S. v. Elizarde-Altamirano, 2007 WL 1765521 (6/20/07)(unpub'd) - Joy-riding that only requires an intent to temporarily deprive the owner of the use of the vehicle was a "theft" so as to qualify as an "aggravated felony" to result in an 8 level enhancement under USSG § 2L1.2(b)(1)(C). So what if this definition of theft is broader than that in the Model Penal Code.

GL Sentence Affirmed

U.S. v. Holtz, 2007 WL 1765526 (6/20/07)(unpub'd) - The 10th upholds sentence within the guideline range, finding that it was reasonable for the district court to conclude that, in devising the child porn guidelines, the Sentencing Commission took into account the kind of sexual abuse the defendant suffered as a child. What???!!! To the district court, the defendant's sexual abuse as a child was "routine."

Tenth Lowers Standard for "Serious" in Determining ACCA Priors

U.S. v. Sanchez, 2007 WL 1765525 (6/20/07)(unpub'd) - The 10th upholds application of an Armed Career Criminal Act application to a sexual assault conviction. Most troublingly, the 10th indicates the S.Ct.'s recent James decision bolsters the notion that the risk to satisfy the "serious potential risk of physical injury to another" provision "need not be very high." Let's just forget about that meaningless "serious" word.

Thursday, June 21, 2007

Presumption that a Guidelines Sentence is Reasonable Upheld for Appellate Review

Rita v. United States, --- U.S. ----, 2007 WL 1772146 (June 21, 2007)

In an 8-1 decision (Souter dissenting), the Supreme Court (Breyer) upholds the presumption that a guidelines sentence is reasonable–courts of appeal are allowed to employ the presumption when reviewing a challenge to the reasonableness of a within-guidelines sentence.

A read of the facts of the case, the sentencing in district court, and the argument on appeal, shows that this was a clean, straightforward, typical request by a defendant for a below-guidelines sentence, both as a departure and as a variance outside of the guidelines, for solid mitigating factors. The district court sentenced at the low end of the USSG, and Defendant appealed, arguing that the sentence was unreasonable because it did not adequately take account his history and characteristics, and it violated the parsimony provision. The Fourth Circuit upheld the sentence applying the presumption of reasonableness.
The presumption is an appellate tool, it is permissible, but it is not binding–it does not put any burden on one side or another. Rather, it “reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case. That double determination significantly increases the likelihood that the sentence is a reasonable one.”

The Court continues with this “in tandem” image of the courts and the Commission as institutions in the business of fashioning fair sentences, and emphasizes the guideline mission of attaining uniformity and proportionality in federal sentencing.

Finally, the Court says that there is nothing about the presumption that violates the 6th Amendment: even if it increases the likelihood that the judge, not the jury, will find “sentencing facts.” The Court also weighs in on the need for the district court to state its reasons, but states that what the judge in this case said was legally sufficient, though he “could have said more.” (So, does not bode well on the procedural argument. )

Stevens and Ginsburg joined in a concurrence, and Scalia and Thomas joined in a separate concurrence.

Souter’s dissent: “I would therefore reject the presumption of reasonableness adopted in this case, not because it is pernicious in and of itself, but because I do not think we can recognize such a presumption and still retain the full effect of Apprendi in aid of the Sixth Amendment guarantee.” And, throwing it back to Congress, post-Booker constitutional decision, “At this point, only Congress can make good on both its enacted policy of mandatory Guidelines sentencing and the guarantee of a robust right of jury trial.”

No Contest Plea to Wyo. Drug Offense Is Agg Felony Despite Deferred Sentence

Gradiz v. Gonzales, --- F.3d ----, 2007 WL 1765527 (10th Cir. June 20, 2007)

Alien’s no contest plea to Wyoming drug offense for which he received a deferred sentence was a conviction under the Imm. & Nationality Act, 8 U.S.C. § 1101(a)(48)(A), which defines an alien’s no contest plea as a conviction. Also, employing the Taylor categorical approach, the Wyoming offense was an aggravated felony (he failed to exhaust this challenge administratively, but his failure to exhaust would have been excused if he had shown that the offense was not an aggravated felony). He was properly ordered deported.

Life Sentence Affirmed in Drug Case

U.S. v. Balderama-Iribe, --- F.3d ----, 2007 WL 1748507(10th Cir. June 19, 2007)

Government filed proper 21 U.S.C. § 851(a)(1) notice and district court did not commit plain error in sentence Defendant to mandatory life in prison after jury convicted him of possessing with intent over 50 gr. of meth (he had two prior drug felony convictions). The prosecutor's single, brief misstatement that Defendant faced a 20-year minimum mandatory made during the pretrial hearing was not enough to undo the clear notice provided by the earlier § 851 information.

Habeas Petition Barred by Failure to Obtain Judicial Review

Magar v. Parker, --- F.3d ----, 2007 WL 1748514 (10th Cir. June 19, 2007)

Because state adopted a statute allowing judicial review of prisoner due process claims, such as Plaintiff’s claim regarding inadequacy of prison disciplinary proceeding that resulted in loss of his good time credits, prior to his disciplinary proceeding and federal petition, Plaintiff was required to avail himself of this potential state recourse before instituting a federal action. Because he did not, his habeas petition was procedurally barred.

Tuesday, June 19, 2007

Give Me Your Tired, Your Poor, Your... DNA.

Banks et al v. United States, -- F.3d --, 2007 WL 1739692 (10th Cir. 6/18/07) - there is no Fourth Amendment violation in requiring nonviolent offenders on parole, supervised release, or probation to submit a DNA sample under the DNA Analysis Backlog Elimination Act of 2000. The Tenth had previously upheld the Act in a challenge by prisoners. The court balances the individual privacy interest against the gov't interest in obtaining info from DNA. The gov't interest in accurately identifying offenders and combatting recidivism wins out (who'd uv thought) over plaintiffs' reduced expectation of privacy and the minimal intrusion entailed in submitting a DNA sample.

Supreme Court Vacates Tenth's Decision that Attorney Workload Can Never Be Excusable Neglect Justifying Late Filing of Appeal Notice

Mitchell v. U.S., 2007 WL 555804 (6/18/07) - The Supreme Court granted the petition for certiorari filed in U.S. v. Mitchell, 464 F.3d 1149 (10th Cir. 2006), vacated the Tenth's decision and remanded for reconsideration in light of its decision last week in Bowles v. Russell, 2007 WL 1702870 (June 14, 2007). In Mitchell, the Notice of Appeal was filed one day after the ten-day time limit for filing in FRAP 4(b). Defendant filed an unopposed motion for an extension of time in which to file the notice, citing workload issues as the reason for the neglectful failure to file. The district court granted the motion. Sua sponte, the Tenth Circuit decided that the district court had abused its discretion in granting the unopposed motion and held that it lacked jurisdiction to consider the merits of the defendant's appeal because attorney workload could never be "excusable neglect" within the meaning of the rule. Apparently, the S.Ct. may be thinking its indication in Bowles that court-rule time limits are not jurisdictional means the government can forfeit a complaint about the timeliness of a criminal defendant's notice of appeal and the Tenth Circuit should not sua sponte revisit the district court's granting of an unopposed motion for an extension of time that is granted within the time limits of FRAP 4(b).

Failure to File NOA Is IAC Regardless of Appeal's Merits

U.S. v. Guerrero, 2007 WL 1705087 (6/14/07)(published) - The 10th overturns a dismissal of a 2255 motion without an evidentiary hearing. The d.ct. was wrong to deny the claim that counsel did not file a notice of appeal as requested on the ground that the defendant suggested no meritorious appellate claims. Counsel is ineffective when counsel fails to file a notice of appeal when the defendant requests counsel to do so, even if the defendant's appeal is frivolous and the defendant has waived the right to appeal in the plea agreement. The defendant's unverified memorandum raising the ineffective assistance ("IA") claim did not comply with Rule 2(b)'s requirement of a signature under penalty of perjury. The 10th ordered the d.ct. to allow the defendant to file an amended properly-verified motion containing that claim and then to hold an evidentiary hearing on the IA claim.

1983 Complainant's Appeal Timely Filed, But Tenth Rejects on the Merits

Larson v. Meek, 2007 WL 1705086 (6/14/07)(unpub'd) - The 10th used the mailbox rule (counting the notice of appeal as filed when the pro se prisoner puts the notice in the prison legal mail system) and the misdirected notice rule (providing that a notice of appeal mistakenly sent to the circuit court is considered filed in the district court on the date received by the circuit court) to hold timely a § 1983 complainant's notice of appeal. A prisoner using a legal mail system doesn't have to file a declaration or notarized statement unlike a prisoner in a prison without a legal mail system. The 10th, of course, rejected his claims on the merits.

Taser Use Not Excessive Force

Hunter v. Young, 2007 WL 1678060 (6/12/07)(unpub'd) - A correctional officer's use of a taser did not amount to excessive force when the officer made a split-second judgment after the prisoner did not obey his order to sit on the bed following a physical altercation with other guards.

Thursday, June 14, 2007

Defendant Charged with Deprivation of Civil Rights Has Four Counts Rev'd Based on Erroneous Instruction

U.S. v. Holly, --- F.3d ----, 2007 WL 1677918 (10th Cir. June 12, 2007).

Defendant was a county sheriff convicted of a number of sexual offenses relating to abuse of jail inmates and employees, and false statement offenses arising out of investigation of those charges. He appealed his conviction of only the 5 felony aggravated sexual abuse under color of law charges.

The agg sexual abuse incorporated into the “color of law” offense is the federal 18 U.S.C. § 2241. While the district court correctly defined force as implied from a disparity in size or coercive power between the defendant and the victim (the 10th’s reasoning borrowing from the guideline definition of force–boy those guidelines are SO multi-purpose), it erroneously instructed the jury on the definition of fear, the alternative theory of liability. By instructing the jury that the fear element is satisfied by fear of “some bodily harm,” the district court eliminated the heightened degree of fear required to support a conviction for aggravated sexual abuse.

Harmless error review applies because even though there was no way of knowing which theory the jury convicted on–the improper fear instruction or the proper force instruction–because fear was a lawful theory of conviction, the Sup. Ct. Stromberg decision does not otherwise apply to bar harmless error review. The 10th characterizes the case as an instructional error on an element of the offense. The 10th asks, then, whether absent the instructional error, the jury would nevertheless have convicted Defendant of aggravated sexual abuse, premised on the victims' fear of death, serious bodily injury, or kidnapping. Defendant’s convictions would be reversed if harmless error review reveals those convictions cannot be sustained on the basis of the fear theory for which the jury received erroneous instructions. As to the victim who resisted the Defendant’s advances, the 10th finds the evidence of fear of great bodily harm, etc. overwhelming (huh? I don’t) and so error is harmless on that count. The 10th reverses the other 4 counts because the error is not harmless–no-to-slim evidence.

Kelly dissents and would reverse all 5 of the counts, disagreeing that harmless error review applies. The error was not merely instructional; rather, the district court instructed the jury it could convict Defendant on a ground that was legally insufficient–it was told it could convict Defendant of deprivation of rights so long as it found him guilty of sexual abuse instead of aggravated sexual abuse. (The deprivation of rights statute, 18 USC § 242, applies not to sexual abuse, but to aggravated sexual abuse). In short, this was a legal error and harmless error review does not apply.

Cop Had Probable Cause to Arrest Plaintiff for DUI, So Had Qualified Immunity in Civil Suit

Wilder v. Turner, --- F.3d ----, 2007 WL 1677951 (10th Cir. June 12, 2007).

Cop had qualified immunity in a § 1983 action. Cop had probable cause to arrest Plaintiff under Colorado law, which provides that a driver shall submit to a sobriety test if the officer suspects the driver of DUI, when cop had PC to suspect P was under the influence and driver refused a field sobriety test. The determination of whether cop had probable cause to suspect Plaintiff of DUI rests not on what Colorado state law determines what probable cause of DUI to be, but on what federal law says, since 1983 vindicates violations of federal constitutional rights. The 10th long ago had determined that smell of alcohol on the driver’s breath alone constitutes enough reasonable suspicion to ask for further sobriety tests and when the driver refuses those tests, the cop has probable cause to arrest. Such were the facts in this case.

Tuesday, June 12, 2007

Unpublished Tenth Circuit Cases

U.S. v. White, 2007 WL 1636426 (6/7/07)(unpub'd) - The 10th agrees with the government's concession that it violated its promise to recommend a sentence at the bottom of the guideline range when it argued for a supervised release term that was above the bottom of the guideline range. Supervised release is part of the sentence.

U.S. v. Thomas, 2007 WL 1600480 (6/5/07)(unpub'd) - The result in this case probably presages the result in future cases complaining about the d.ct.'s failure to give reasons for the sentence. The 10th holds that the d.ct. did not provide sufficient reasons for the sentence because the d.ct. did not mention § 3553(a) or respond to the defendant's nonfrivolous arguments for a below guideline range sentence or provide any explanation for the sentence. But, since the defendant did not object to the failure to give reasons, he could not prevail unless the d.ct.'s error seriously affected the fairness, integrity, or public reputation of judicial proceedings. The defendant failed to prove such an effect essentially because he could not prove the sentence was substantively unreasonable.

U.S. v. Sosa-Acosta, 2007 WL 1589416 (6/4/07)(unpub'd) - The 10th rejects the defendant's proposal that, if the defendant notes a mitigating factor not mentioned by the guidelines, the d.ct. must sentence below the guideline range unless a counterbalancing § 3553(a) factor is present. The 10th insisted the defendant always has the burden to prove that whatever factor he raises is so important and persuasive as to overcome the eighteen years' worth of "careful" consideration the Guidelines represent.

U.S. v. Kinzalow, 2007 WL 1600492 (6/5/07)(unpub'd) - The defendant's detention was lawful because he was in an area immediately adjoining an arrestee (in a chair south of a coffee table that was next to the doorway of the bedroom where the arrest occurred), regardless of whether the officers had reasonable suspicion the defendant posed a danger.

U.S. v. Contreras, 2007 WL 1589405 (6/4/07)(unpub'd) - The 10th refuses to reinstate an appeal of a defendant whose counsel neglected to file a brief after several grants of extension requests and misled the defendant into thinking counsel was seeking reinstatement of the appeal. The same counsel represented the defendant on a 2255 motion. Because the defendant failed to appeal the denial of that motion, the 10th decides the defendant's weighty interests in his right to appeal and effective assistance of appellate counsel are outweighed by "the profound interests in repose that attaches to the mandate of a court of appeals." Don't you agree?

Erickson v. Pardus, 2007 WL 1636290 (6/7/07)(unpub'd) - The 10th complies with the S.Ct. decision described in last week's update, acknowledging that the prisoner sufficiently alleged substantial harm. The 10th goes on to hold that the prisoner had also sufficiently alleged the prison's deliberate indifference to his health when it terminated his Hepatitis C treatment, despite the d.ct.'s finding to the contrary. Now on to the ever-fruitful summary judgment stage before the d.ct.

Thursday, June 07, 2007

Felon-In-Possession and ACCA Sentence Affirmed

U.S. v. Nevels, --- F.3d ----, 2007 WL 1620509 (10th Cir. June 06, 2007)

The defendant was sentenced as an armed career criminal (ACCA) after being convicted by a jury of possession of a firearm as a felon and possession of a firearm with an altered serial number.

1. Trial court did not abuse its discretion in allowing testimony of a government witness who was disclosed only 3 days before trial. There was no court order directing disclosure, the witness did not exculpate the defendant so it was not Brady material, and Jencks requires disclosure of witness statements only after cross examination. Moreover, the government learned of the witness and interviewed her only a few hours before they disclosed her identity to the defense, along with a summary of her statement. There was no lack of diligence by the government, no prejudice to defendant, and defendant did not request a continuance, and so a sanction of not permitting the witness to testify would be extreme.

2. Not plain error for trial court to admit crime scene reconstruction testimony that the defendant used the firearm to shoot a person in his home at close range 7 times. It was relevant since defendant argued that he legitimately possessed the firearm because he acted in self-defense. Although prejudicial to the defendant, the court cannot say that in weighing the evidence under Evid. Rule 403, the district court abused its discretion in determining that the probative rebuttal value of the evidence outweighed any prejudice.

3. The district court correctly applied the categorical approach to determine whether the defendant’s previous juvenile convictions for aggravated robbery committed when he was 11 years old qualified as “violent felonies” under ACCA (he admitted to both acts of delinquency in the same proceeding). The Colorado statute under which he was adjudicated categorically is a COV. Defendant’s argument that the court should have determined whether a gun actually was involved in one of the robberies and whether the other juvenile and not defendant had possessed it was without merit–the same categorical analysis under ACCA applies whether the offense is adult or juvenile (besides, Colo. makes it a juvenile offense to aid and abet another, so it is immaterial that D’s juvenile co-D had the gun). Finally, the Taylor categorical approach applies to any prior offense, not just to burglaries.

Wednesday, June 06, 2007

Yet Another Excessive Within-GL Sentence "Reasonable": What Are We Doing?

U.S. v. Pruitt, -- F.3d --, 2007 WL 1589409 (10th Cir. 6/4/07) - the Tenth affirms a 292-month GLs sentence for a career offender with old, petty nonviolent drug priors because the district court correctly analyzed the 3553(a) factors and reasonably found the GLs sentence appropriate to promote respect for law and adequately punish Ms. Pruitt. She did not rebut the presumption of reasonableness accorded to her GLs sentence and "the sentence would be reasonable-even if marginally so-absent the presumption." McConnell writes a thoughtful concurrence, noting that the rebuttability of the presumption of reasonableness is more theoretical than real. In the two years since Booker, only one of the thousands of GLs sentences reviewed by the twelve COAs has been declared substantively unreasonable and the exact same sentence was imposed on remand in that case, later affirmed by the 8th Cir. "This makes me suspect that the real holding of this case-and of dozens like it-is that a substantively unreasonable within-Guidelines sentence does not exist. This raises the question of what we all are doing, and why." Although McConnell characterizes this case as an "ideal candidate" for a variance or a departure and concludes that Ms. Pruitt's sentence was "wildly excessive," he also concludes that it is sensible to presume reasonable the district court's exercise of discretion to impose a GLs sentence.

Tuesday, June 05, 2007

Improper to Sentence Defendant Convicted of PWID Meth As Though Convicted of More Serious Offenses; Upward Variance Reversed

U.S. v. Allen, 2007 WL 1560152 (5/31/07)(published) - An excellent victory for a defendant represented by our Oklahoma City AFPD colleague, Tony Lacy, where the 10th reverses an upward variance from 135 months at the top of the guideline range to 30 years on substantive unreasonableness grounds. The defendant was convicted of possession with intent to distribute meth. The d.ct. varied because of evidence that: (a) the defendant, who had a prior rape conviction of an underage girl, discussed in detail with someone else his desire and possible plan to kidnap, rape and murder a pre-teenage girl and (b) the defendant approached a ten-year-old girl at a Wal-Mart and asked her if she liked men in masks and professional wrestlers and told her not to look at Wal-Mart employees because "they'll kill you," [unlikely, unless it increased the profit margin]. The d.ct. sentenced the defendant, according to the guidelines, as though he had been convicted of solicitation to commit aggravated sexual abuse or first-degree murder.

The 10th (Judge McConnell) noted the guidelines' requirements that: conduct be counted for offense-level purposes only if it is related to the offense of conviction; only convictions establish the criminal history score; and upward departures for under-representation of criminal history are generally limited to unconvicted conduct similar to the offense of conviction and only result in an increase of the criminal history score, not the offense level. The 10th pointed out those requirements serve to protect the defendant from the imposition of a sentence that strays too far beyond the Sixth Amendment jury-trial protection. While acknowledging a d.ct. has some discretion to consider its own assessment of the risk of recidivism and to take into account conduct beyond what is permissible to consider under the guidelines, the 10th found excessive the weight the d.ct. gave to the evidence of dissimilar, unrelated conduct. It is one thing to conclude a defendant who committed uncharged crimes or presents a serious risk of committing future crimes deserves greater punishment than a similarly-situated defendant who committed no such crimes and presents no such risk, "it is quite another thing to conclude the proper measure of that increase is the sentence that would be imposed had the defendant actually been convicted of those uncharged, unrelated crimes." (Emphasis in original). "A sentencing judge may not sentence a defendant for an entirely different. and far more serious, crime [than the offense of conviction]." The 10th noted Blakely's concern that a defendant convicted of possessing a firearm could be sentenced for the murder committed with the gun. The 10th also disapproved of the d.ct.'s possible attempt to punish future crimes, as occurred in Minority Report. In closing, the 10th summarized: a d.ct. "may not discard the advisory Guideline range and impose sentence ... on the basis of evidence of the defendant's uncharged, unrelated misconduct, whether actually committed or contemplated for the future." Then, for the first time that I can recall, the 10th mentioned the parsimony clause, saying it was confident the d.ct. could fashion a sentence that took into account the defendant's dangerousness, that was "sufficient, but not greater than necessary, to achieve the purposes of sentencing."

Plain Error for Court to Not Establish Restitution Payment Schedule; Vague Letter Sufficient to Support Amount

U.S. v. Ahidley, 2007 WL 1519873 (5/25/07)(published) - Tenth issues a plain error reversal of the d.ct.'s restitution order. It was obvious error, despite the contrary opinion of other circuits, that the d.ct. erred by ordering the immediate payment of $ 22,537.13 of restitution without considering the factors required to be considered by 18 U.S.C. § 3664(f)(2), including the defendant's financial resources. The error affected the defendant's substantial rights and adversely affected the integrity of the proceeding because the defendant was obviously incapable of paying the restitution immediately. The 10th remanded for the d.ct. to presumably set up a reasonable payment schedule.

On the bad news side, the d.ct. did not err when it determined the amount of the restitution for an assault conviction based on a letter from the NM Human Services Department stating a certain amount of expenses "may be related to the accident that occurred" on the same date as the assault. The expense seemed to the 10th to be reasonable in light of the hospitalization, surgery and other medical treatment the victim received. Nothing in the record would lead the d.ct. to doubt the loss amount.

Evidentiary Arguments Rejected in Upholding Cocaine Convictions

U.S. v. Mendoza, 2007 WL 1575985 (6/1/07)(unpub'd) - Despite the brilliant, dogged efforts of two AFPDs, the 10th upholds a defendant's cocaine convictions. DEA agent West's expert testimony regarding the drug world did not amount to testimony on the state of mind of the defendant in violation of Fed. R. Evid. 704(b), even though his testimony inexorably lead to the conclusion he believed the defendant was a seller, not a user, as the defendant contended. While agreeing with the 2d Circuit that a serious risk of prejudice is associated with the use of a case agent as an expert as well as a fact witness, the 10th declined to adopt a per se rule excluding such testimony. The 10th will leave it to the d.ct. to make the necessary 403 determinations. Anyway, any error was harmless.

The d.ct. did not abuse its discretion in refusing to order disclosure of two confidential informants ("CI"). It was pure speculation that CI-1 was referring to someone other than the defendant as the cocaine source when CI-1 said the source may have been arrested at a time when the defendant had not been arrested. The mere fact that CI-2 had knowledge of the drug organization, but failed to mention the defendant in conversation with the agent, was not exculpatory.

Evidence that the defendant made threats to cooperating witnesses was admissible under 404(b) and not violative of 403, despite the defendant's
contention that the evidence was too ambiguous and prejudicial.

Applicability of Appeal Waiver Depends on Whether Court Accepted Agreement

U.S. v. Doe, 2007 WL 1560141 (5/31/07)(unpub'd) - To determine whether the defendant had waived his appeal, the 10th remands for the d.ct.'s clarification as to whether it rejected the plea agreement, which included an appeal waiver. At the beginning of the sentencing hearing, the d.ct. explicitly deferred ruling on whether to accept the plea agreement, and the d.ct. later rejected the government's 5K1.1 motion, which was a critical part of the plea agreement, on the grounds that it did not think the defendant would live up to his agreement to cooperate.

Officers May Not Create Exigency to Avoid Warrant Req't

U.S. v. Castro, 2007 WL 1548981 (5/30/07)(unpub'd) - The 10th is "troubled" by the officers making a traffic stop, thus creating an exigency to raid a residence before the gang got wind of the resident's detention. Officers "may not create their own exigencies to avoid the necessity of a warrant to enter a person's home," the 10th noted. But, the defendant had no standing to object to the search.