Suppression of Statements Taken In Violation of Miranda Affirmed

US v. Revels, No. 06-5223 (12/20/07): Government took interlocutory appeal from order of district court suppressing defendant’s statements for Miranda violation and Tenth Circuit affirmed. Defendant and her boyfriend were in bed when cops executed search warrant at 6:00 a.m. They handcuffed her and made her lie face down on the floor for about ten minutes. They then uncuffed her, allowed her to dress and care for an infant, and made her sit with her boyfriend while they conducted the search. After the search was completed, three cops took her to a bedroom, closed the door, and began to question her. They also confronted her with a bag of cocaine found during the search. Not surprisingly, she made incriminating statements. At no time was she told she was free to leave.

The government’s main argument was that the defendant was under “investigative detention” and not formally arrested until after the questioning, so that Miranda did not apply. The Tenth rejected this attempt to conflate the Fourth Amendment analysis of the reasonableness of an investigative detention with the Fifth Amendment analysis of custody, just as it had previously done in US v. Perdue, 8 F.3d 1455 (10th Cir. 1993). Turning to the latter, the Tenth agreed with the district court that a reasonable person in the defendant’s position would have understood her freedom of action to have been restricted to a degree consistent with formal arrest. Even though the questioning occurred in the defendant’s home, the atmosphere at the time was clearly dominated by the police, who had complete control of the situation. Plus, she had been isolated from her boyfriend, questioned by herself in a closed room, and confronted with incriminating evidence, together indicating that she was in custody. Nor had she been told that she was free to leave or at liberty to terminate the questioning. Finally, the questioning occurred after the search had been completed and contraband had been found. Placing the defendant and her boyfriend under arrest were all that remained to be done at the residence, as the defendant must have known was going to happen.

Speedy Trial Act Violated; District Court Gets to Decide if Dismissal Should Be With Prejudice

US v. Williams, No. O6-5036 (12/20/07): Dismissal ordered for violation of Speedy Trial Act; case remanded for determination of whether dismissal should be with or without prejudice.

On October 10, 2004, the defendant was indicted on charges of possession of crack with intent, possession of a firearm in connection therewith, and felon in possession of the firearm. He was convicted following trial held a little more than a year later. Because of his three prior drug convictions, he was sentenced to life without parole.(I mention this to give you a sense of his chances on remand).

The speedy trial problems arose from the defendant’s demands for new counsel, continuances occasioned thereby, and his execution of an open-ended waiver of his speedy trial rights. He moved to continue his first trial setting to allow new counsel to prepare. The court granted the motion, reset the case, and ordered that the period from the first trial date to the second be excluded from the speedy trial calculation. The defendant changed counsel again, so the court sua sponte moved the trial back a week and excluded that time as well. On the new trial date, February 14, 2005, the defendant executed a waiver in which he agreed to another continuance of both a pretrial conference and the trial itself in order that new counsel enter the case and prepare for trial or seek another resolution of the pending charges. The waiver also stated that he had no objection “to the Court ordering that all delays resulting from the continuance be excluded under the Speedy Trial Act and that the ends of justice served by the continuance outweigh the interests of the public and Mr. Williams in a speedy trial.” On July 19, 2005, some five months later, the court entered a summary order resetting the trial for September 12, 2005, and stated that the entire period from February 14 to September 12 was excludable pursuant 18 USC § 3161(h)(8)(A). On September 9, the defendant filed a motion to dismiss for violation of the Speedy Trial Act, which was denied because of the waiver. The case finally went to trial on October 24, 2005.

The Tenth began by calculating the amount of time that was properly excludable from the total period of 370 days between first appearance and trial because of pretrial motions under § 3161(h)(1)(F) and (J). This came to a total of 160 days. Along the way, the Tenth sidestepped a conflict among several circuits about how to deal with “pro forma” requests for discovery that do no require action by the court (here a request for notice of government’s intent to introduce 404(b) and 609 evidence). It simply followed the premise common to the various approaches that such motions cannot indefinitely exclude time from the speedy trial clock. Thus, even if 30 days from the filing of the request were excluded under 18 USC § 3162(h)(1)(J) (the Ninth Circuit approach), this would not affect the ultimate determination here.

The Tenth then addressed the defendant’s waiver. Following Zedner v. US, 126 S.Ct. 1976 (2006), it held that the defendant could not validly waive the application of the Speedy Trial Act prospectively, and the district court erred in ruling that he had in fact done just that.

Finally, the Tenth addressed the periods associated with the ends-of-justice continuances arising from the several changes of defense counsel. A total of three had been granted, and all three suffered from the same speedy trial defect -wholly inadequate factfinding on the record to justify them, as required by § 3161(h)(8). This was especially true of the district court’s July 19th order, which was both retroactive and prospective. The district court erred in excluding the retroactive period from the date of the waiver to the entry of the order because Congress did not intend ends-of-justice continuances to be granted retroactively. Findings that justify such a continuance may be entered on the record after the fact, but they must be made at the time the continuance is granted. There was nothing in the record to indicate that the court had even considered the statutory factors set out in § 3161(h)(8)(B) when it granted a continuance based on the waiver. The prospective part of this order, like the other two orders granting continuance, was defective because it was not based on adequate, on-the-record findings; none of them even mentioned the ends-of-justice basis for granting them, much less address the public’s interest in the speedy resolution of criminal cases.

Dirty License Plate Grounds for Stop; Lengthy Detention and Search OK

U.S. v. Lyons, --- F.3d ----, 2007 WL 4395442 (10th Cir. Dec. 18, 2007)

Stop of vehicle at night for a dirty and hard to read license plate was valid, because it was a violation of Kansas law to have an obscured plate. Even though cop wiped the dirt off the registration sticker and read it before talking to driver/D, driver was still in violation of law (unlike 10th Cir. precedent where once cop could see, the assumed illegality disappeared). Also, even though license was dirty because of snow and road conditions the day before, that was the day before, and not immediate, making that forgiving 10th Cir precedent inapplicable too.

Cop had suspected drugs in the spare tire on the undercarriage, and that was his reason for hunting for and finding the license plate violation to justify the stop. So, after giving the D back his license and registration and giving him a warning ticket, the cop questioned D further with a number of questions about whether he had drugs in his vehicle, to which D replied “no.” According to the 10th, there was reasonable suspicion for this further detention: D was traveling east on I-70, he had 2 cell phones in the vehicle ( he had a passenger) and drug dealers also have cell phones (!), the spare tire was a different brand and a larger size than the tires on the four wheels, looked suspiciously clean and appeared to be carried lower on the vehicle than normal, and had fingerprints and tool marks on it. The D’s record showed a history of drug offenses. There was a smell of air freshener, and there was a radar detector in the truck.

The cop asked for permission to search “in the back,” and the D said yes. The cop took the tire from the undercarriage, thumped it and listened with a stethoscope, and slashed it open with a knife, finding lots and lots of cocaine.

The stethoscopic inspection of the spare was within the scope of D’s consent. D did nothing to stop this inspection or limit it. Once the thump came back sounding like a druggy thump, the cop, along with everything else he knew (including seeing cans of Fix-A-Flat in the back of the vehicle indicating that the occupants knew that the spare was not usable as a spare) had probable cause to slash and search.

Denial of Motion to Withdraw Guilty Plea Upheld

U.S. v. Hamilton, --- F.3d ----, 2007 WL 4393257 (10th Cir. Dec. 18, 2007)

The 10th upholds the district court’s denial of D’s motion to withdraw his plea based on ineffective assistance of counsel (no abuse of discretion in denying the motion). (D pleaded guilty to drugs and gun+drugs). The 10th reached the IAC merits because the district court held a hearing on D’s claim that he entered a plea based upon erroneous information given to him by his attorney that he was not looking at sentencing as a career offender–it was the rare case where a record was sufficiently developed for review.

Under R. 11, D must show a fair and just reason for withdrawing his plea. Of the 7 parts of the “test” to determine if the D met his burden, the court looks at, among other things, D’s claim of innocence and the assistance he had from counsel. D raised “legal innocence”–a 4A violation. This is generally enough but it must be a credible claim, and he presented no factual argument in support of his 4A claim. Even though he now said his attorney failed to raise a suppression issue and was therefore ineffective, he did not claim ineffectiveness on THIS ground below. Moreover, on the gun count, even though D argued innocence because the gun was not found near the drugs, the 10th said that he cannot show innocence because, in part, he “has not repudiated his admission of guilt.” (Even though he was trying to withdraw his guilty plea....)

Under the straight constitutional IAC claim, D did not meet the prejudice prong because the plea document and colloquy indicated he knew his attorney could not promise a sentence and that the ultimate sentence was left to the judge. His current allegation that he would have gone to trial but for his attorney's failure to advise him of the career-offender provision, in the face of the record, was insufficient to establish prejudice. For the same reason, his voluntariness claim fails.

Finally, the within GL sentence was reasonable, and the 10th reaffirms that any challenge to procedural reasonableness must be made contemporaneously or it will be reviewed for plain error.

Conspiracy to Commit 2nd-degree Burglary Not an ACCA Predicate

U.S. v. Fell, --- F.3d ----, 2007 WL 4395444 (10th Cir. Dec. 18, 2007)

Nice defense victory, holding that conviction of Colorado conspiracy to commit second degree burglary is not a violent felony under ACCA, after analyzing the statute under James v. United States, 127 S.Ct. 1586 (2007), because it does not present a risk of violent confrontation comparable to the risk inherent in a completed burglary. This is because under Colorado law, the overt act element required for a conspiracy conviction need not be directed toward the entry of a building or structure. It can be satisfied by such attenuated conduct as purchasing tools, which is done at a distance from the object of the burglary, and creates no risk of a violent confrontation.

Tenth Affirms Within-GL Sentence Post-Gall

U.S. v. McComb, --- F.3d ----, 2007 WL 4393142 (10th Cir. Dec. 18, 2007).

A first, not very elucidating grappling with Gall, in an opinion by Gorsuch, in which a within guidelines sentence at the low end is deemed reasonable. There is the discussion of procedural and substantive reasonableness. This panel made a point to assert that there was still an appellate role post-Gall. It quoted the Gall language about a major departure needs to be supported by significant justifications, and it reviewed the component parts of an abuse of discretion review, emphasizing that an error of law constitutes an abuse of discretion.

It was interesting that the 10th acknowledged compelling reasons for the defense- requested variance–D had a very debilitating stroke after his arrest supporting a claim that any danger of continuing criminal behavior was minimized and that he was better medically cared for outside of the BOP. However, there was record evidence that D was more capable than he argued, and the sentencing court received assurances from the BOP that they could care for D–these were factors taken into account by the district court in not going with the variance requested by the D.

No Innocent Posession Defense to Felon-in-Possession Charge

US v. Baker, No. 07-07-3002, (December 6, 2007): the Tenth Circuit in a published opinion rejected the defendant’s “innocent possession” defense to the charge of felon in possession of ammunition and affirmed his conviction. It also affirmed his ACCA sentence of 235 months, which was at the bottom of the guideline range.

On November 1, 2005, the defendant, who had three prior Kansas burglary convictions, was sitting in a car parked outside his daughter’s apartment complex at 4:00 am with the headlights on. A patrolling cop saw the car and decided to check it out. He shined his lights on the car. The defendant got and approached him. The cop told him to stop, got his ID, ran a records check on the vehicle and found out the tag had been reported lost or stolen. A check on the defendant disclosed two active city bench warrants. The cop arrested him and found a speed loader with six rounds in it in his pocket. The speed loader had been stolen earlier that night during a burglary of a steakhouse. At trial, the defendant testified that he found the speed loader after leaving a Halloween party and picked it up because he was worried that a child might find it. He stopped at the apartment complex to drop off a companion and that’s when the cop arrived. He got out of his car and approached the cop in order to turn the speed loader over to him, but never got the chance. He had had possession of the speed loader for only about ten minutes.

Based on that testimony, he requested an instruction that told the jury that innocent possession of the ammunition is a defense to the charge, and that it should acquit him if it found 1) the ammunition was obtained innocently and held with no illicit purpose, and 2) the possession was transitory, meaning there was a good basis to find that he took adequate measures to rid himself of the possession as promptly as reasonably possible. The instruction was modeled on the definition of the defense approved in US v. Mason, 2233 F.3d 619 (DC Cir. 2000). The district court refused to give the instruction because it felt the evidence did not warrant it. Judge Tacha, joined by Judge Murphy, held that it was not supported by the law. The DC Circuit had allowed the defense under similar circumstances because, without it, knowing possession will always be a crime, regardless how or why the defendant came into possession or how long it lasted. Judge Tacha rejected that reasoning, finding that was exactly what Congress intended by making knowing, rather than willful (i.e., with a bad purpose) possession a crime. The Court also distinguished the defense from the narrower necessity defense, which requires the defendant to show that he had no legal alternative to violating the law. Since the innocent possession defense did not require the defendant here to contemplate his legal alternatives prior to taking possession, allowing it would impermissibly expand the scope of the necessity defense, which must be “strictly and parsimoniously applied.”

Judge Holloway dissented from this holding, instead finding the reasoning in Mason persuasive. He focused on the fact that other courts that have rejected the defense on strict statutory and public policy grounds nevertheless do recognize other defenses not created by Congress, such as duress, justification and entrapment. He also took issue with the majority’s reliance on the exercise of prosecutorial discretion to not bring cases where, like here, the necessity defense is not technically available, but the facts suggest that it would nevertheless be unfair to prosecute.

As for the sentence, the PSR treated the defendant as an armed career criminal because of the three burglary convictions. He challenged the use of the first of the convictions, arguing that it should not count because, under Kansas law, his civil rights had been restored as to that conviction prior to the instant offense. Following a “whole law” rather than “conviction specific” approach, the Court held the defendant’s right to possess firearms and ammunition had never effectively been restored because he was continuously under state custody.

What the defendant did NOT challenge was the reasonableness of his sentence of 19 years and 7 months under 18 USC §3553. Even though this sentence was at the bottom of the guideline range, there was certainly an argument to be made for the minimum mandatory, given the facts upon which his defense rested. Plus, the jury acquitted him of possession of stolen ammunition, no gun was involved in this case, and no guns were involved in any of the prior burglaries. The Court may well have rejected the argument, of course, but is still puzzling why the argument was not at least advanced.

Within-GL Sentence Reversed!

US v. Marquez, No. 06-2211 (10th Cir. Dec. 5, 2007) (unpublished): The Tenth Circuit reversed a within-guideline sentence in a reentry case.

Even though the guidelines were correctly calculated to give Mr. Marquez a 16-level increase for having a prior conviction for attempted burglary of a habitation, for which he had received a sentence of 10 years probation, the parties incorrectly treated that prior conviction as an aggravated felony. Thus, the PSR erroneously stated that he was subject to a 20-year maximum sentence. Mr. Marquez's guideline range was 46 to 57 months. His sentencing counsel filed a sentencing memorandum requesting a variance based on the facts that the prior crime was nonviolent, occurred 20 years before, and was his only criminal history. However, counsel did not point out that the prior conviction was erroneously characterized as an aggravated felony. At sentencing, the court stated that "I have considered [the sentencing memorandum], and nothing about the sentence I'm going to give causes me any problems." The judge then went on to state that he'd reviewed the PSR and specifically said, "The Court notes the defendant illegally reentered the United States subsequent to an aggravated felony conviction." When counsel pressed for a reason, the court merely said, "Didn't I say I thought the sentence was fitting?" And then imposed a sentence of 46 months.

Mr. Marquez appealed. His counsel filed an Anders brief. The Tenth rejected it and appointed new counsel. The Tenth Circuit agreed that it was plain error for the prior conviction, which did not qualify as an aggravated felony because no sentence of imprisonment was imposed, to be considered an aggravated felony. Mr. Marquez had asked for lower sentence, and the panel thought it likely that "the 'fact' that Marquez had a prior aggravated felony conviction was front and center in the district court's thought processes in imposing a sentence." It agreed that this mischaracterization made it less likely for the court to be inclined to sentence him to less than the advisory guideline range of 46-57 months. The Court also found that the error was not harmless, distinguishing an earlier decision, US v. Gonzalez-Coronado, 419 F.3d 1090 (10th Cir. 2005). It also specifically observed that, although the Tenth doesn't require much explanation when a district court sentences within the guideline range, "we note that the sentencing proceeding here was extremely terse and conclusory, lasting a mere four minutes from start to finish. The district court simply stated it rejected Marquez's request for a downward departure, without further elaboration. Indeed, one of the few statements the district court made was its specific observation that Marquez had a prior aggravated felony."