Interstate Nexus In Gun Case Shown by Manufacture In Different Jurisdiction

U.S. v. Bradley, 2007 WL 2110904 (7/24/07)(unpub'd) - Nothing more than showing a firearm was manufactured in a jurisdiction other than the one in which the firearm was found is needed to prove the interstate nexus element of § 922(g).

District Court Again Told to Hold Evidentiary Hearing

U.S. v. Saenz, 2007 WL 2122054 (7/25/07)(unpub'd) - In this 2255 case, the d.ct. improperly failed to hold an evidentiary hearing. The d.ct. granted an evidentiary hearing continuance requested by the prisoner and then in apparent frustration with the prisoner's lack of preparedness for the hearing just decided for the government. The 10th said it would have been okay to deny the continuance, but since the 10th had previously ruled the petitioner had made sufficient allegations to require a hearing, the d.ct. must hold a hearing, regardless of the prisoner's preparedness issues.

Dismissal of Prison Working Conditions Case Rev'd

Blay v. Reilly, 2007 WL 2110798 (7/24/07)(unpub'd) - The 10th reverses dismissal of § 1983 complaint about prison working conditions. The prisoner alleged inadequate ventilation and work that created a high risk of getting cut. The d.ct. held: "it cannot be reasonably found, based merely upon a layman's opinion that the experienced defendants were aware of an excessive risk to the prisoner's health and safety and/or that they responded unreasonably to the risk." The 10th held a reasonable trier of fact could find deliberate indifference in favor of the layman.

Contreras decision withdrawn.

U.S. v. Contreras, the case reported last week that found reasonable suspicion to search the defendant's car was withdrawn for "corrections" according to the court docket. Apparently someone realized probable cause was required for the search of an automobile. Look for the search to be upheld on consent grounds.

Tenth Circuit Cases

U.S. v. Contreras, 10th Cir. No. 06-4144, (no WL cite available yet) (7/18/07)(Published) - An odd traffic stop ruling, not in its determination that reasonable suspicion existed, but in its assumption that the officer only needed reasonable suspicion to search the car. I could have sworn you needed probable cause to do that. In any event, reasonable suspicion was established where: (1) the defendant's travel plans were "suspicious at best and incredible at worst," i.e., traveling 1,200 miles to see family and turning around within a day to drive back 1,200 miles; (2) having food wrappers from California when she claimed to be traveling from Las Vegas, Nev., to Nebraska; (3) using a rental car (drug couriers often use third-party rental cars); and (4) the defendant was so nervous she could not hold onto the documents in her hand.

An obstruction of justice enhancement was appropriate when the defendant fled from state prosecution before the issuance of the federal indictment based on the same offense as the state prosecution . Where the defendant could be prosecuted by state or federal authorities, her flight delayed ("impeded") her prosecution in federal court, warranting the obstruction enhancement. Seven other circuits agree with this conclusion. The Seventh Circuit has held otherwise.

Becker v. Kroll, 2007 WL 2056775 (7/19/07)(Published) - The state charged the plaintiff-doctor with Medicaid fraud after a review panel had determined she had not committed any such fraud. A groundless charging decision does not violate the Fourth Amendment, absent an arrest or incarceration of the plaintiff. Such a prosecution also does not violate substantive due process. The plaintiff's Utah state tort remedies provided the requisite procedural due process to remedy any injuries. There was no due process relief for the suppression of exculpatory evidence because Brady is a trial right and there was no trial. There was no relief for the seizure of the plaintiff's patient records because an administrative subpoena need not be supported by probable cause. The subpoenas were sufficiently limited in scope, relevant in purpose and specific in directive so as not to be unreasonably burdensome.

U.S. v. Warren, 2007 WL 2070281 (7/20/07)(unpublished) - The defendant agreed to accept a five-year sentence for revocation of a suspended state burglary sentence in return for dismissal of a state charge of felon-in-possession. It was not unreasonable for the federal court to impose a consecutive federal sentence for being a felon in possession of a firearm, even though the defendant really got no benefit, and plenty of ineffective assistance of counsel, from his state plea deal.

Powell v. Rios, 10th Cir. No. 06-1289, (no WL cite available yet) (7/19/07)(unpublished) - The 10th reverses a dismissal for failure to obey an order to file a complaint in a previously filed § 1983 case seeking a temporary restraining order. The plaintiff had filed the complaint, but the clerk's office mistakenly treated the complaint as beginning a new lawsuit.

Macarthur v. San Juan County, 2007 WL 2045462 (7/18/07)(Published) - A published case where the 10th spends almost of its discussion of the merits detailing how counsel violated a number of rules regarding brief-writing, e.g. the absence of the words "standard of review," reciting under the statement of the case factual assertions, without discussing the proceedings below, etc.

Informant Couldn't Consent to Entry by Officers

Callahan v. Millard Co., UT, et al, -- F.3d --, 2007 WL 2028971 (10th Cir. 7/16/07) - officers violated Mr. Callahan's clearly established constitutional rights by entering his home without a warrant, direct consent, or exigent circumstances after an informant bought meth from him. The district court erred in granting summary judgment based on qualified immunity derived from the "consent-once-removed" doctrine. While that doctrine permits an undercover officer invited into a home to summon other officers for assistance after establishing pc for search or arrest, the 10th decides the consent exception should not be broadened to cover an informant's invitation to police to enter a home. The distinction is that consent to entry by an undercover officer covers additional backup officers, whereas an individual does not consent to police entry by inviting an informant to enter. In light of clearly established law and the available info, reasonable officers would not have believed their warrantless entry of Mr. Callahan's home was lawful.

Lying About Citizenship to Get A Job Renders Alien Inadmissible

Kechkar v. Gonzales, 2007 WL 1991162 (7/11/07)(unpub'd) - An alien's lie regarding his citizenship on an employment application to a private employer, [in this case Dillard's] is a misrepresentation of citizenship for "any purpose or benefit under this chapter" under 8 U.S.C. § 1182(a)(6)(C)(ii)(I). The quoted phrase includes trying to obtain unlawful employment. As a result, even though the alien is married to a U.S. citizen he is permanently barred from coming to this country.

Juvenile Adjudication Restitution Can Be Discharged in BR

In Re Sweeney, 2007 WL 991069 (7/11/07)(Published) - Restitution imposed as the result of a juvenile adjudication can be discharged in bankruptcy. Bankruptcy law exempts from discharge restitution "included in a sentence on the debtor's conviction of a crime." A juvenile adjudication is an adjudication of status, not a conviction for a crime, under federal law.

Officer Can Ask About Contraband, Weapons Before Completing Traffic Stop

U.S. v. Valenzuela, 2007 WL 2007553 (7/12/07)(Published) - The 10th gives the green light to avoiding the whole tedious rigamarole of waiting until after returning the documents following a traffic stop and then asking whether there is any contraband in the vehicle and then asking for consent. In this case, the 10th says it was okay for the officer to ask those questions before he started going through his citation issuing procedures. The questions did not "appreciably" extend the duration of the stop. The defendant did not challenge the voluntariness of the ensuing consent. The 10th ruled the initial stop was okay where the defendant once crossed into the right lane from the left lane about three or four feet and straddled the lane line for several seconds. The defendant did not have an excuse for doing so, unlike in U.S. v. Gregory, 79 F.3d 973 (10th Cir. 1996), where the driver drifted onto the shoulder [not another lane] on a winding mountainous road on a windy day.

On Appeal After Remand, the Tenth Affirms Re-imposed Sentences

U.S. v. Sanchez-Juarez, 2007 WL 1874235 (6/29/07)(unpub'd) - The 10th affirms the defendant's sentence on appeal after remand from a successful appeal, After the 10th had chastised the district court for not explaining his sentence enough the first time, the judge added the word "3553(a)" and claimed to have considered the defendant's arguments. That was enough of an explanation to pass muster. Most troubling about the decision were the comments on the substantive reasonableness issue disparaging a couple of our favorite arguments. The 10th was unconvinced by the argument that the d.ct. should "step in and overrule a prosecutor's discretionary decision not to offer a fast-track plea bargain." The 10th also found that deportable aliens' lack of access to certain prison programs did not alter the basic nature of the alien's sentence so as to warrant a sentence below the guideline range. The 10th held the notion that the d.ct. should ameliorate the harshness of the mandatory minimum sentence for aggravated identity theft was flatly contrary to the statute. The 10th also indicated it was unlikely a defendant could prevail on a contention that his prior alien smuggling conviction that resulted in a 16-level bump was relatively minor. A U.S. v. Trujillo-Terrazas, 405 F.3d 814 (10th Cir. 2005) type argument is more likely to succeed when the bump is based on the "amorphous" "crime of violence" enhancement

U.S. v. Dazey, 2007 WL 1830760 (6/27/07)(unpub'd) - An appellate victory that ultimately comes to naught. The 10th reversed a pre-Booker sentence that was based on enhancements imposed under the mandatory guideline system. The 10th had held the government had not proven the enhancements beyond a reasonable doubt. On resentencing, the d.ct. imposed the identical enhancements based on a finding by a preponderance, but with the understanding the guidelines were advisory and imposed the identical sentence it had previously imposed. The 10th affirmed, of course. Treating the guidelines as advisory made all the enhancements okay. An important appellate note: the 10th chastised the defendant for failing to provide the trial transcripts, while challenging the sufficiency of the evidence to prove the enhancements.

Counsel Must Object to District Court's Failure to State Sufficient Reasons For Sentence

U.S. v. Romero, 2007 WL 1874231 (6/29/07)(published) - The 10th makes clear that trial counsel MUST OBJECT to a d.ct.'s failure to state adequate reasons to explain its sentence in order to avoid plain error review, i.e., to avoid certain affirmance. The 10th acknowledged it had been unclear on this point because in U.S. v. Sanchez-Juarez, 446 F.3d 1109 (10th Cir. 2006), and its progeny, it had reviewed the inadequate-reasons argument de novo, even though counsel had not objected. In other cases, including its first decision on the point, i..e., U.S. v. Lopez-Flores, 444 F.3d 1218 (10th Cir. 2006), it did require an objection. The 10th follows Lopez-Flores because it was first, because it has the benefit of affording the d.ct. a chance to correct its mistake, because of the overruling of U.S. v. Bartsma, 198 F.3d 1191 (10th Cir. 1999) in U.S. v. Atencio, 476 F.3d 1099, 1105, n. 6 (10th Cir. 2007), and because other circuits agree with the Lopez-Flores approach. The 10th failed to mention a couple of circuits that take the opposite position. So, the issue is still ripe for en banc and S.Ct. review. In this case, there was no objection. There is no relief under the plain error standard because the defendant could not show the failure to state reasons affected his substantial rights. That would doubtless be true for any defendant. So, OBJECT already.

The record sufficiently established the defendant read the PSR where counsel said at the sentencing hearing "we've read it." It was not necessary to engage the defendant himself in a colloquy about his reading of the PSR. Plus, unlike two other circuits, the 10th requires a showing of prejudice resulting from the failure to read the PSR to gain a reversal. Good luck with that.

Reversal on Some Issues in Bank Fraud Case

U.S. v. Flanders,--- F.3d ----, 2007 WL 1894419 (10th Cir. July 3, 2007)

Bank CEO challenged bank fraud, misapplication of loan, and false application convictions. Complex enough facts; read the case if you have a client charged under these statutes.

1. Insufficient evidence to show Defendant willfully misapplied bank funds under 18 U.S.C. § 656 for a car loan he approved for which the bad credit of the borrower was fully disclosed and Defendant's benefit from the loan was fully disclosed–no intent to defraud shown, and no intent to injure shown.

2. Evidence was slim but sufficient to show intent to defraud bank (§ 656) in real estate loan (though strong evidence of attempt to deceive the borrowers, evidence of intent to deceive the bank was weaker). Defendant caused bank to issue a loan in excess of the sale value of the real estate by inflating the sale price. Jury could infer that D’s last minute substitution of entities on the loan documents was meant to keep the bank in the dark as to whom was actually the borrower.

3. Sufficient evidence to prove violation of 18 U.S.C. § 1344(1). No loss to the bank need be shown regarding this real estate loan transaction. Evidence that D schemed to defraud Bank by concealing a rejected borrower’s continued involvement in the transaction was enough to support conviction.

4. Evidence sufficient for false entry conviction when Defendant directed typist to delete from board minutes the condition placed by the board for approval of loan.

5. Applying United States v. Gonzalez-Lopez, 126 S.Ct. 2557 (2006), the 10th finds no 6th Amendment violation of the right to counsel of choice by district court’s denial of continuance that would have permitted sole representation by Defendant's hired counsel. (Court had granted a number of continuances due to co-Defendant’s incompetency and for time to prepare. Once Defendant had bucks to pay for private counsel, court would not grant continuance to let that counsel get up to speed, but allowed hired and appointed counsel to co-represent Defendant).Places on Defendant a burden to show prejudice to defense, which was not shown.

6. District court erred in applying a 2 level enhancement for Defendant’s alleged violation of a memo of understanding (under a now-extinct guideline enhancement provision)–the MOU was not mandatory, only advisory, so violation of it did not support the enhancement. See opinion for treatment of challenges to more than minimal planning, abuse of position of trust, obstruction enhancements.

Gov't Breach of Plea Agreement Requires New Sentencing

U.S. v. Vandam, --- F.3d ----, 2007 WL 1982155 (10th Cir. July 10, 2007)

The government breached the plea agreement that it would recommend the low end of the calculated guideline range when it argued for a sentence higher than the low end of the range the district court finally determined was appropriate. The plea agreement did not bar the government from arguing for an overall higher guideline range and the low end of that range, but once the district court determined the range, the government was bound to recommend the low end of that range. The PSR inclusion of the terms of the government’s agreement did not substitute for the government actually making that recommendation.

Although the district court imposed a sentence at the lowest point of the guideline range–the very sentence the government should have recommended–harmless error does not apply to issues of breach of plea agreements. Santobello requires an automatic remand upon a breach, thus not contemplating harmless error review.

Although the choice of remedy is up to the court--withdraw the guilty plea, sentencing in front of a different judge, or specific performance in front of the same judge–if the defendant does not want to withdraw the plea, the court appears to follow the remedy requested by the defendant. Here it was appropriate to order specific performance in front of the same judge.

Crime Rates Linked to Lead Poisoning

An article in the Washington Post discusses a link between declines in lead exposure and decreases in violent crime in 9 countries, including the U.S.

The article, entitled entitled Research Links Lead Exposure, Criminal Activity
Data May Undermine Giuliani's Claims, states in part:

The theory offered by the economist, Rick Nevin, is that lead poisoning accounts for much of the variation in violent crime in the United States. It offers a unifying new neurochemical theory for fluctuations in the crime rate, and it is based on studies linking children's exposure to lead with violent behavior later in their lives.
What makes Nevin's work persuasive is that he has shown an identical, decades-long association between lead poisoning and crime rates in nine countries.
"It is stunning how strong the association is," Nevin said in an interview. "Sixty-five to ninety percent or more of the substantial variation in violent crime in all these countries was explained by lead."