Friday, February 29, 2008

Plea Colloquy Error Did Not Negate Appeal Waiver

US v. Ibarra-Coronel, No. 06-2183, 2008 WL 525381 (10th Cir. Feb. 28, 2008):

Defendant pled guilty pursuant to a Rule 11 agreement to conspiracy to distribute more than 1K of heroin. The plea agreement included an appeal waiver. At the plea hearing, the magistrate mistakenly stated that the maximum penalty was 120 months, when actually that is the statutory minimum sentence. Mr. Ibarra-Coronel was ultimately sentenced to 120 months. On appeal, Defendant contended the magistrate's error was reversible error. The Tenth dismissed the appeal, holding that the defendant knowingly and voluntarily waived her appeal rights.

Thursday, February 28, 2008

Multiple Sentencing Hearings Not Unreasonable

US v. Collins, No. 06-5221, 2/27/08 (unpublished) - District court did not abuse its discretion in conducting a series of sentencing hearings in an attempt to properly determine the correct amount of substance attributable to the defendant in this drug conspiracy case. Getting the amount, and resulting base offense level, right is part of a procedurally reasonable sentence. Sufficient evidence supported the court's final calculation and the sentence was substantively reasonable as well.

Colorado Harassment Convictions Not Categorically Crimes of Violence

US v. Maldonado-Lopez, No. 07-2195, 2/27/08 (published): The Tenth Circuit reverses for resentencing in a reentry case in which the defendant had three prior misdemeanor convictions for harassment under Colorado law. Defendant objected to the three convictions being considered misdemeanor crimes of violence and his offense level under USSG 2L1.2 being enhanced four levels as a result. Defendant argued that the Colorado statute was not categorically a crime of violence and that the summary description in the judgment of the prior conviction was insufficient to prove that he was convicted of one of the subsections that had, as an element, the use of force. The district court overruled the objections and imposed 4-level increase.

The Tenth Circuit held that the modified categorical approach was appropriate here because the statute was broad enough to encompass both violent and nonviolent crimes. Furthermore, although there was sufficient evidence to conclude that two of the prior convictions were domestic violence, the evidence supporting the third conviction, the judgment only, did not provide a factual basis from which the judge could find that it was in fact a crime of violence - it just listed the generic title of the statute as the crime of conviction. 4-level increase was therefore not applicable.

Judge McConnell, concurring, urged the Tenth Circuit to clarify its case law concerning use of the categorical and modified categorical approach.

Abandon Hope, All Ye Who Enter Here: Pew Report Documents Prison Population Explosion

Or so Dante described the words at the portals to Hell in The Inferno.

The phrase could describe the new American reality. A new Pew Report says that, for the first time, more than one in every 100 American adults is in jail or prison. The report tracks the surge in inmate population. The report, released Thursday by the Pew Center on the States, said the 50 states spent more than $49 billion on corrections last year, an increase from the less than $11 billion spent 20 years ago. Furthermore, the rate of increase for prison costs was six times greater than for spending on higher education, according to the report. Using state-by-state data, the report said 2,319,258 adults were held in U.S. prisons or jails at the start of 2008 - one out of every 99.1 adults, and more than any other country in the world. The complete report is available here.

Wednesday, February 27, 2008

Attorney General Must Be Notified of Constitutional Challenge to Federal Statute in Civil Case

Oklahoma ex rel Edmondson v. Pope, ___F.3d___, 2008 WL 495982 (10th Cir. Feb. 26, 2008)

10th remands case to the district court with instructions that it notify the Attorney General of the United States of a constitutional challenge to a federal statute (the Telephone Consumer Protection Act) raised by a litigant. Fed. R. Civ. Pro. 5.1 requires a party contesting the constitutionality of a federal statute to serve the Attorney General with notice of the action. Remand was one of a number of possible ways the 10th could have dealt with the failure to notify; remand made sense because the parties had not litigated important public policy issues of the statute on which the AG might want to take a stand.

"Fugitive Disentitlement Doctrine" Applied to Immigration Appeal

Martin v. Mukasey, ___F.3d___, 2008 WL 501113 (10th Cir. Feb. 26, 2008)

Appellate review of a final order of removal is barred by the “fugitive disentitlement doctrine.”After the Bureau of Immigration Appeals affirmed the immigration judge’s order of removal, petitioner failed to appear in front of the department of homeland security for removal pursuant to an order, and “absconded.” According to the 10th, this is the equivalent of being a fugitive from justice, and applies the doctrine–dismissal of appeals when appellant is on fugitive status.

Tuesday, February 26, 2008

Death Penalty Upheld in Oklahoma Double Murder Case

U.S. v. Fields, -- F.3d --, 2008 WL 483281 (10th Cir. 2/25/08) - the federal government properly exercised concurrent territorial jurisdiction in this death penalty double murder case on national forest land. Prospective juror who said he could only support the death penalty in extreme cases was substantially impaired in his ability to consider the death penalty and was properly excused for cause. The COA rejected numerous claims re: weighing of aggravating and mitigating factors. Any errors re: consideration of those factors as a whole instead of count-by-count were invited by counsel and not subject to review. There was sufficient evidence to support the jury's finding of the substantial planning and premeditation and future dangerousness aggravators. The aggravators relating to infliction of anguish or other special suffering on a victim were not overbroad or preempted by the statutory aggravator for murder committed in a heinous, cruel, or depraved manner. Any error in admitting victim-impact evidence re: friends, co-workers, and community was harmless. The jury was not required to find beyond a reasonable doubt that the aggravating factors sufficiently outweighed the mitigating factors to justify a death sentence.

Unpublished but Interesting Decisions

U.S. v. Kolthoff, 2008 WL 467001 (2/20/08) (unpub'd) - The d.ct.'s finding that the drug dog "alerted" to drugs in the car was not clearly erroneous where the video showed the dog "heavily sniffed the trunk area twice and then looked to the handler." The handler explained that when the dog looks back he expects the handler to throw him a toy or "something." Could the dog be "alerting" just so he can get a treat? No drugs were found. In any case, an alert without anything else, absent an unreliable dog, constitutes probable cause, the 10th reaffirms.

U.S. v. Stupka, 2008 WL 442397 (2/19/08) (unpub'd) - Another example of the absurdity of the ACCA's "on occasions different from one another" requirement. The defendant committed three "violent felonies" under the ACCA where he burglarized three apartments under the possession and control of the same people, on the same day, at the same address, by using the same master key.

Valdez v. McKune, 2008 WL 466993 (2/20/08) (unpub'd) - The 10th suggests a defendant may have standing to assert his fair trial right has been violated by the unlawfully coerced testimony of a government witness, even though the coercion only immediately implicated the witness's Fifth Amendment privilege against self-incrimination. But, any error was harmless.

Payne v. Friel, 2008 WL 466884 (2/20/08) (unpub'd) - The 10th remands to the d.ct. to determine whether the duration of the prisoner's administrative segregation for more than three years was an "atypical and significant hardship" creating a liberty interest entitled to due process protections. Summary dismissal reversed.

Brown v. Narvais, 2008 WL 442398 (2/19/08) (unpub'd) - The prisoner sufficiently stated a claim for relief when he alleged a guard spread the word that the prisoner was a child molester, even though he had not actually suffered any physical injury. The disclosure was as dangerous as the disclosure in another case that the prisoner was a snitch. See Benefield v. McDowall, 241 F.3d 1267 (10th Cir. 2001). Summary dismissal reversed.

Friday, February 22, 2008

Civil Rights Claim of Unconstitutional Jail Conditions Against County Sheriff Reinstated

Tafoya v. Huerfano Co. Sheriff John Salazar, No. 06-1191 (10th Cir. 2/21/08) (published):

Ms. Tafoya was sexually assaulted by a detention center guard while being detained in the jail. This assault occurred three years after the Tenth Circuit had held, in another case involving assaults on female detainees by male detention officers, that the assaults were the result of unconstitutional jail conditions and that Sheriff Salazar was deliberately indifferent to those conditions. Despite that earlier 10th Cir. decision, the district court granted Sheriff Salazar's motion for summary judgment, concluding that Ms. Tafoya had failed to show that the Sheriff was actually aware of a substantial risk of harm to female inmates and she had failed to show a causal connection between Salazar's managerial failures and the sexual assault. The Tenth disagreed, holding that the Sheriff was aware of the dangerous conditions and that a jury could conclude that the assault was the result of those conditions.

Among the deficiencies noted by the Tenth Circuit were: 1) despite the addition of surveillance cameras, there were still "blind spots" where assaults (like this one) could occur and the Sheriff knew this; 2) he continued to knowingly employ guards with criminal records (like the detention guard who assaulted Ms. Tafoya and who had a record that included assault convictions); 3) he failed to implement regular training programs despite their ready and inexpensive availability; and 4) he did not establish an adequate grievance procedure. The dismissal of Ms. Tafoya's Section 1983 claim was reversed.

Plaintiffs Who Interfered with Son's Arrest Were Reasonably Seized

Bradford v. Wiggins, No. 06-4287 (10th Cir. 2/20/08):

Defendant deputies were entitled to qualified immunity in civil rights suit arising out of the defendants' alleged seizure of the plaintiffs when they interfered with the arrest of their son. The majority assumed without deciding that the Bradfords were seized, but that it was reasonable and did not violate the Fourth Amendment. Concurring, Chief Judge Henry would have held unequivocally that the Bradfords were seized, albeit reasonably.

Gov't Did not Breach "Oral" Plea Agreement

US v. Tremble, No. 07-3130 (10th Cir. 2/20/08) (unpublished):

Tenth Circuit affirms Mr. Tremble's conviction and sentence for felon in possession. He was sentenced on Oct. 31, 2003, in Douglas County court to 40 months based on the same incident. He was also going to get sentenced in Shawnee County. In October 2004, he was indicted in federal court under 18 USC 922(g). There was no plea agreement, but the AUSA represented to the district court that the government would concede that any federal sentence should be concurrent with the Douglas County sentence and that he should get credit for the Douglas County time, but the government wanted the federal sentence to be consecutive to the Shawnee County sentence. Additionally, although the PSR calculated the GL range as 46-57 months imprisonment, the government asked for an upward variance, citing US v. Myers, 66 F.3d 1364 (4th Cir. 1995), in which consecutive sentences were imposed. Mr. Tremble was sentenced to 115 months, concurrent with the Douglas sentence but consecutive to the Shawnee sentence. Unfortunately, the Douglas sentence had been completed so the district court left it to the big-hearted BOP to figure the credit.

Mr. Tremble contended that the government breached its "oral plea agreement" by citing Myers. Although the Tenth acknowledged the principle the "concessions" by the government might be binding, but in this case the government did not advocate for a sentence other than what it had "conceded" earlier, so no breach. Secondly, Mr. Tremble argued that the court should have applied USSG 5G1.3(b). Unfortunately, that GL applies to undischarged terms of imprisonment, and the Douglas County sentence was fully served at the time of sentencing, so the district court did not err in not applying it.

Wiretap, Slang Evidence Admissible in Drug Case

U.S. v. Verdin-Garcia, --- F.3d ----, 2008 WL 435495 (10th Cir. Feb. 19, 2008)

Defendants convicted of marijuana and methamphetamine trafficking conspiracies and related counts.

- The DEA investigation relied heavily on gathering information on the structure and operations of the conspiracy from wiretaps (obtained with warrants). The 10th finds that the government made a sufficient showing of necessity under the wiretap statute–that it showed that traditional investigative techniques would not be sufficient. Read the opinion for a fairly careful dissection of what are some of the challenges that can be made to affidavits in support of a wiretap warrant.

- Voice exemplars of Defendants taken from jail phone calls (to compare with wiretap intercepts) complied with statute: Defendants were warned at jail that calls could be monitored or recorded, and Defendants use of phones amounted to a consent to have them recorded.

- Government translator could testify that a meaning for “jale,” besides job or work, is “dope”; a translator may provide nonliteral translation of slang terms which are widely used and understood by the native speakers, and the translator does not need to be an expert in code language interpretation. Evidence showed that use of jale for dope was slang, not code.

- amounts of drugs not seized but discussed in wiretapped calls are legitimately included in calculating drug quantity guidelines. Sentence (life) within the guideline range presumptively substantively reasonable; 10th discusses fairly extensively what appeared to be an extensive consideration by the district court. Also, 10th says that 18 U.S.C. § 3553(a)(6) requires a judge to take into account only disparities nationwide among defendants with similar records and Guideline calculations, not disparities within a particular case.

Friday, February 15, 2008

Consent to Search Unconstitutionally Coercive When Obtained by Deputy Who Was Also Lawyer

Eidson v. Owens, 2008 WL 376770 (10th Cir. 2/13/08)

After marijuana charges brought against Mr. and Mrs. Eidson in state court were dismissed after their suppression motion was granted, they brought a civil rights action against Deputy Sheriff Owens, who participated in the search and who was their former attorney. In April 2002, Owens drafted the Eidson's will. In August, 2004, in his role as a reserve-force deputy, Owens participated in a search of the Eidson's farm. In the civil rights action, the district court denied Owens' motion that he had qualified immunity in connection with the search.

The facts leading up to the search were that Mrs. Eidson ran into Owens' wife and told her about an altercation she just had with her son's girlfriend. Owens' wife told Owens, and he headed out to the Eidsons' farm in a marked car. He met Kim at a closed gate to the driveway, about 200 yards from the house and asked if she was "okay." For some reason, four more deputies arrived in short order. One told Owens that the Eidsons' 17-year-old son had given information about marijuana being grown on the farm. This was a lie; the deputy talking to Owens actually got the information from the mother and grandmother of the son's girlfriend. Owens confronted Mrs. Eidson with this information and she confessed that there were some plants. Mr. Eidson arrived and was also told that their son had turned them in. In response to Mr. Eidson's question about what would happen if they didn't consent to a search, Owens told them "if it takes three days..we'll hold you here for three days" to get a warrant. Owens also said the judge would go harder on them for their lack of cooperation. So, "consent" was obtained and marijuana plants, bags of marijuana and paraphernalia were found in the farm and house. When Mirandized, Mrs. Eidson said that Owens was her lawyer. Owens told the Eidsons on the way to jail that he couldn't be their lawyer.

The Tenth Circuit concluded that there was probable cause to obtain a search warrant because of the information from the girlfriend's mother and grandmother and Mrs. Eidson's admission. However, the consent was invalid: "A consent to search is hardly the product of a free and unconstrained choice when procured by an officer who had in the not-too-distant past provided legal advice and who currently advises that withholding consent will result in detention and a judicial penalty." Despite the conclusion that the search was unconstitutional, the Court concludes that it would not have been clear to a reasonable officer that what he was doing violated the Fourth Amendment. So, Deputy Owens was entitled to qualified immunity on this claim.

The Court also held that Owens was entitled to qualified immunity on the Fifth Amendment claims because there was no indication her confession was involuntary.

However, the Court dismissed Owens' appeal of the denial of summary judgment on the Eidsons' legal malpractice claim because it was independent of the constitutional claims and better suited to disposition in the district court.

Improper Guidelines Calculation Leads to Too Low of a Sentence, Remand

United States v. Todd, No. 06-6334 (10th Cir. Feb. 12, 2008)

District court guidelines sentence based on the 37 grams of meth Defendant was arrested with, rather on the 680 grams he admitted to having dealt in the previous year (and trial evidence tended to confirm multiple sales by Defendant) was clearly erroneous and not harmless, in spite of Gall. This was not a correctly calculated guideline sentence, and the guidelines remain the required starting place. Practice tip: apparently, a more careful sentencing record by the district court might have made the court’s low sentence a bit more appeal proof.

Tuesday, February 12, 2008

Mandamus Appropriate Method for Obtaining Audiotape of Sentencing, not 2255

U.S. v. Mondragon-Avilez, 2008 WL 313199 (2/5/08 (unpub'd) - The defendant's collateral relief waiver did not preclude a request for an audiotape of his sentencing hearing that he claims was mistranslated. But he had to seek the tapes by mandamus, not by 2255.

One Bad Brake Light Supports Stop

U.S. v. Brewer, 2008 WL 313438 (2/5/08) (unpub'd) - Reading the Utah statutes in conjunction with the federal statutes, the 10th holds the officer had reasonable suspicion to make a traffic stop of the defendant because one of the three rear lamps on the car was inoperative. Having two operational lamps was not enough to avoid a stop unless the car was older than 1985 when the car didn't have to have a separate brake lamp.

New Sentencing Required Because District Court Presumed GL Sentence Was Reasonable

U.S. v. Jesus-Gomez, 2008 WL 313388 (2/5/08) (unpub'd) - The 10th reverses the district court because it applied a presumption of reasonableness to the guidelines. The error was not harmless because the sentence was at the bottom of the guideline range. Significantly, even though the defendant did not contest the presumption before the district court, the 10th, while noting plain error review might have been appropriate, applies harmless error, rather than plain error, review, because the government conceded the less stringent standard applied.

Search of Defendant's Person Several Miles Away from Her Residence Was Improper

U.S. v. Young, 2008 WL 313436 (2/5/08) (unpub'd) - The 10th reverses a denial of a motion to suppress. The search warrant only authorized the search of the defendant's person in the course of searching her residence. Consequently, the search of the defendant's person several miles away from her residence was beyond the scope of the warrant. In interpreting the warrant, the 10th relied on the command line that ordered a search of the "premises" and the warrant affidavit which described narcotics activity occurring only at the residence. The defendant did not waive her argument in this regard by not specifically mentioning the command line in the lower court. The good faith exception does not apply to an improper execution of a warrant. The 10th refused to remand to the district court to consider arguments the government had not made below.

Habeas Petitioner Sentenced to Adult Prison When a Juvenile Denied Relief

Gonzales v. Tafoya, --- F.3d ----, 2008 WL 307971 (10th Cir. Feb. 5, 2008).

Petitioner was a passive, small, 14 year old who had long suffered from, among other things, bipolar disorder, depression, and ADD, when along with an older juvenile, he broke into the house of a couple they thought were not home. When the couple unexpectedly returned, Petitioner shot the man in the chest, and the other boy shot the man in the head to kill him. Petitioner eventually pleaded guilty as a juvenile to second degree murder, burglary, assault and battery. The sentencing court followed the New Mexico dispositional statute which permitted the court to sentence a juvenile who has committed certain serious crimes as an adult if “(1) the child is not amenable to treatment or rehabilitation as a child in available facilities” and (2) “the child is not eligible for commitment to an institution for the developmentally disordered or mentally disabled.” The court found that Petitioner was not amenable, and not eligible, and sentenced him to 22 years in adult prison.

The primary issues in the federal § 2254 addressed (1) the constitutionality of the state sentencing provision, and (2) the validity of Petitioner’s guilty plea.

(1) In New Mexico, juveniles are tried in the Children's Court, and that court has the authority to impose both juvenile and adult sentences depending on the circumstances. There are 3 tiers of juvenile offenders–“serious” are 15 or older charged with first degree murder whose cases are adjudicated in adult court with the full panoply of due process rights. The second tier are “youthful offenders” who are children fourteen years or older who are adjudicated guilty of any one of twelve enumerated violent felonies. They are entitled to be sentenced within the juvenile system unless the prosecution has filed a notice of intent to seek an adult sentence and the court makes the amenability findings referred to above. P fit within this group. The 3d tier are other juveniles–younger or with less serious offense who are presumed to be amenable to treatment.

The court conducted the amenability hearing after Petitioner’s guilty plea and found him not amenable to treatment. On his direct appeal in state court, Petitioner contended that the amenability and eligibility findings constituted “facts that increased the penalty for a crime beyond the prescribed statutory maximum, ” contrary to Apprendi. Those facts therefore were required to have been submitted to a jury, and proved beyond a reasonable doubt. The facts supporting the court’s non-amenability determination then, were insufficient. The state supreme court rejected the argument, determining that Apprendi applied to elements of a crime, “a matter fundamentally different than findings regarding amenability to treatment and eligibility for treatment.”

The 10th started its analysis by reiterating the review standard that a Petitioner is entitled to federal habeas relief only if the state court's decision is contrary to or an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States. It encapsulated Petitioner’s argument as follows: that amenability and commitment findings are analogous to the New Jersey hate crimes statute applied to enhance the defendant's sentence in Apprendi: absent those findings, the maximum sentence that Petitioner could have received was commitment to a juvenile facility until he turned twenty-one. Petitioner claimed that the state hearing violated his right to due process.

Here is where the 10th punts: at the time the New Mexico Supreme Court ruled, the US Supreme Court had issued none of its post-Apprendi sentencing decisions in Booker, Blakely, and Ring, none of which are retroactive. Although the 10th acknowledged that some of Petitioner’s arguments had support in some of the language in Apprendi itself, Apprendi did not actually address juvenile findings, as involved in this case. Because “reasonable minds differed” on application of Apprendi in a juvenile setting (the 10th looked at other courts’ decisions, even when the juvenile systems were unlike that in NM), the NM Supreme Court plausibly and reasonably declined to read Apprendi so broadly. (It appears that 10th would nevertheless find a distinction between amenability determinations in a juvenile setting and factual finding affecting sentencing in an adult setting, in spite of Booker, Blakely and Ring. It appears to have no problem with the constitutional no-man’s land that a juvenile like Petitioner is in–-no jury trial, no proof beyond a reasonable doubt of facts to support a determination of non-amenability to treatment-–that result in a greatly increased sentence). Moreover, the trial court’s use of the clear and convincing standard of proof was correct and it did not matter that no law defined what the standard of proof was.

The Tenth completely ignored Petitioner’s argument that his Apprendi rights were violated by the trial court’s finding–without a defined standard of proof–of facts that resulted not only in a massive sentence increase but also converted admissions of juvenile delinquency to adult felony convictions.

(2) During the period following Petitioner’s arrest, he underwent extensive testing and treatment. During one of his court-ordered in-patient residential juvenile treatment stays, he was raped by an older boy. Throughout this period, and during all discussions of pleas, one of his attorneys had doubts regarding his competency and ability to understand the plea proceedings, prompting further evaluations. A second attorney eventually believed, and an evaluation concluded, that despite deficiencies, he was competent to plead. (This second attorney had prompted the plea by telling Petitioner that he could expect to be sexually abused if went into custody and that he would be released from custody under the plea. These facts did not find their way into the opinion). The court went through a standard plea colloquy and accepted Petitioner’s guilty plea.

The Tenth found no problem with the federal district court denying an evidentiary hearing on whether the plea was knowing, intelligent and voluntary. Affidavits from Petitioner and his mother, from the defense attorney, and psych evaluations from defense and state experts were all part of the record. The 10th dismissed the probativeness of the defense expert opinion that Petitioner was not competent due to his youth and mental condition because it was prepared 5 years after the plea. The conclusion that the plea was voluntary was not contrary to clearly established law (not in the facts is that Petitioner’s responses during the plea colloquy were merely “yes”s to the court’s questions, and never once was he asked to explain in his own words what he understood he was doing).

Petitioner raised two other issues, both treated rather cursorily by the 10th : (1) six instances of ineffective assistance of counsel, largely addressing failures by defense counsel to object to testimony and portions of evaluations which came before the state district court when it reached its non-amenability finding; and (2) insufficient evidence to support the non-amenability finding in the face of expert evidence at the time that Petitioner was amenable to treatment. Read the opinion for discussion of these.

Tenth Rejects Claims of Error, Affirms Death Sentence in OK Case

Brown v. Sirmons, --- F.3d ----, 2008 WL 307452 (10th Cir. Feb. 5, 2008).

Multiple issues raised in a §2254 death penalty case–the conviction and sentence were upheld by the Tenth. The overall result, both below and in federal court seems somewhat shocking given the nature of some of the claimed errors, the relative garden variety nature of the offense (killing of a clerk during a 7-11 robbery), and the extremely mild to non-existent criminal background of the petitioner (P) (3 separate illegal firearm possessions, and one assault and battery in what looked like a crowd melee fight).

- use of dual juries in trying co-Defendants was not structural error and did not burden Petitioner’s cross examination (jury A leaves the room when evidence inadmissable against Def A is admitted)

- deference afforded to court’s voir dire on death eligible jurors. There is no constitutional right to rehabilitate jurors who express doubts about imposing the death penalty.

- Petitioner had a full and fair opportunity to litigate his 4th Amendment claim in state court and even though a 4th Amendment violation likely occurred, a habeas court cannot overturn a conviction on that basis. Stone v. Powell equally applies in a death penalty case.

- the state supreme court’s resolution of many claims of prosecutorial misconduct (many of which were reviewed on appeal under plain error standard because not objected to below) was not an unreasonable application of federal law. While the state supreme court ruled that it was error to introduce during the penalty phase a gruesome photo of the beating the victim sustained, that court determined that the error was harmless. Tenth agrees it did not have a substantial and injurious effect on the verdict.

- failure of trial court to give instructions on (1) second degree felony murder and (2) second degree murder “involving imminently dangerous conduct” not an unreasonable application of federal law. (1) The robbery was first degree because completed with the baseball-bat beating to death of the Victim (second degree robbery is by use of fear). (2) Second degree murder instruction issue reviewed de novo because not procedurally barred and not addressed in state court. Because robbery and the murder that resulted--felony murder--requires no evidence of an intent to cause the death of a victim under Okla law, but second degree murder does require evidence of depraved mind, the jury would not have been able to acquit Petitioner of the greater offense (first degree felony murder) by finding him guilty of the lesser one and so, under Okla law, he was not entitled to the lesser instruction.(Less mens rea warrants greater punishment).

- sufficient evidence of the penalty phase aggravators--heinousness of crime--was proven by evidence the victim suffered before he died; there was proof through a video that Petitioner participated in causing Victim’s death. The video showed that he, with others, went to the back room where the Victim’s body was found, and he stayed for the entire time until all the robbers left the store. Although the evidence was that Petitioner did not inflict the blows, but did hold down the Victim, and although the co-Defendant who inflicted the blows was spared the death penalty, the different results do not matter.

- the killing to avoid arrest and the continuing threat aggravators were appropriate

- any error in inappropriate victim impact evidence was harmless.

Tenth Considers "Prison Mailbox Rule"; Jury Instruction in Alien in Possession of Firearm Case

US v. Lindsay, No. 07-3180 (10th Cir. 2/7/08) (unpublished): The Tenth Circuit dismisses the 2255 petitioner's appeal on the grounds that the notice of appeal was filed late on June 18, 2007. It declines to apply the prison mailbox rule even though 1) the petitioner had until June 15, 2007 to file; 2) the NOA and certificate of service were dated June 13, 2007; and 3) the envelope in which he mailed the documents to the district court was stamped as "received" on June 14, 2007 by the prison. Despite these facts, the Tenth concludes that Defendant did not allege or prove that he made timely use of the prison's legal mail system or timely use the regular mail system in combination with a notarized statement or declaration under penalty of perjury of the date on which the documents were given to prison authorities.

US v. Avila-Gonzalez, No. 07-8048 (10th Cir. Feb. 7, 2008) (unpublished): Tenth affirms the defendant's conviction for being an illegal alien in possession of a firearm. The district court properly rejected the defendant's requested jury instruction that would have asked the jury to find that the firearm had moved in interstate commerce as part of a commercial transaction. The Tenth affirms that all that is required is proof that the gun moved from one state to another.

Wednesday, February 06, 2008

Tenth Circuit Decisions

U.S. v. Lozano, 2008 WL 241119 (1/30/08) (Published) - A mildly helpful case for an acceptance of responsibility reduction after going to trial. Despite the defendant's assertion in her opening brief that the 10th should review only for plain error her challenge to the one-level acceptance of responsibility reduction, the 10th, in accordance with the government's concession, reviewed for harmless error. The defendant's request for a two-level reduction under § 3E1.1 preserved the issue. As 10th precedent has already established, a sentencing court can only give two levels or no levels under § 3E1.1. The error was not harmless because the district court may very well have chosen the two-level reduction, had it known it could not reduce by only one level. Post-arrest the defendant admitted to her cocaine distributions to the undercover officer and offered to plead guilty to the two distribution counts. She also engaged in rehabilitation efforts. But she refused to plead guilty to the conspiracy count and the government refused to offer a plea absent her pleading to that count. At trial, the defendant did not offer any evidence to counter the distribution charges. She was acquitted of the conspiracy count and convicted of the distribution counts. Because the d. ct. imposed a sentence at the lowest end of the guideline range, the defendant's sentence might be different on remand.

U.S. v. Banks, 07-5010 (2/1/08) (unpub'd) - The trial court erred when it admitted an officer's testimony, as lay opinion, that the defendant "most definitely distributed meth to obtain money." The government initially tried to get that testimony admitted as expert testimony, but the defendant objected that he had not gotten any notice of expert testimony. The 10th points out that the lay-opinion Rule 701 "is not designed to provide a run-around to the expert witness requirements." The government obviously was relying on the officer's specialized training and experience under Rule 702. It was not admissible because the government had not provided notice. Also, while Rule 704 allows experts to offer opinions, even if they embrace the ultimate issue, the rules don't allow an expert to offer testimony that merely tells the jury what result it should reach and, in this case, the testimony was also improper testimony about the defendant's state of mind, which Rule 704(b) prohibits. But, the error was harmless due to overwhelming evidence.

An appellate lawyer's nightmare where the 10th suggests an issue not raised on appeal might have been a good one. Officers evicted the defendant from his hotel room at the hotel's behest after noise complaints. The defendant initially refused to step out of the room as requested, but then as he started to leave, the officers grabbed him, handcuffed him and took him to the lobby. The officers then searched the room without a warrant. The 10th had "serious concerns" about the way the officers "assisted" with the eviction. But, since the defendant did not raise that issue on appeal, although it had been raised below, the 10th assumed the eviction was conducted constitutionally. This was one of the "rare"cases where the 10th could review a suppression issue not raised below, because the record was fully developed. The issue was whether the search conformed to the Fourth Amendment. It did because the defendant did not have a reasonable expectation of privacy in the room once he was properly, justifiably evicted.

U.S. v. Najera-Luna, 2008 WL 276044 (2/1/08) (unpub'd) - § 2L2.1(b)(2)(C)'s enhancement when an offense "involved 100 or more" fake identification documents, refers to documents that could be produced, as well as those that had been produced. Here, the fact that the defendant had photos and materials that could produce more than 100 such documents was enough to warrant the enhancement.

U.S. v. Ludvigson, 2008 WL 276043 (2/1/08) (unpub'd) - Plain error review applied to unobjected-to occupational supervised release restrictions because the defendant should have had an inkling they might have been imposed, given the bank fraud charges and the statutory and guideline provisions noting the possibility of such restrictions. The restrictions were okay here.

Reed v. U.S., 2008 WL 228027 (1/29/08) (unpub'd) - The petitioner could not challenge the BOP's failure to give him credit for presentence confinement until the BOP makes a confinement credit determination, which the BOP had not yet gotten around to. So, the petition had to be dismissed as not ripe.

Wellington v. Mukasey, 2008 WL 276047 (2/1/08) (unpub'd) - Just a Kafka-esque example of what gyrations a federal court can put a pro se prisoner through. The prisoner's petition must be dismissed for failure to exhaust his administrative remedies because in federal court he claimed the BOP's decision to treat his sentences as consecutive violated due process whereas administratively the prisoner only complained the BOP couldn't treat them as consecutive. It was too late now to raise the issue he raised administratively, despite all that liberal reading of pro se pleadings.

Friday, February 01, 2008

Telling Jury to Convict "To End Cycle of Violence" Improper But Not Plain Error

United States v. Taylor, No. 06-1449 (10th Cir. Jan. 29, 2008) (published): The Tenth Circuit declines to find plain error even though it finds that a prosecutor's remark in his opening statements in Mr. Taylor's trial were inappropriate. Mr. Taylor was on trial for assault based on a fight he instigated on a reservation. In opening, the prosecutor urged the jury to find Mr. Taylor guilty in order "to end the cycle of violence" on the reservation. Mr. Taylor's counsel objected and the court issued a curative instruction, telling the jury that the statements of counsel were not evidence, etc. No further objection or other expression of dissatisfaction was made. After being found guilty, Mr. Taylor appealed, arguing that the curative instruction was insufficient to cure the prejudice from the statement. The government conceded at oral argument that the remark was inappropriate. The Court first determined that its standard of review was plain error because the defendant did not tell the trial court it was unhappy with the curative effect of the instruction. There was no plain error because the jury was otherwise properly instructed and there was no indication that the jury did not follow the instructions. Judge Briscoe concurred in the result, but would have applied a de novo standard of review to whether the prosecutor's remark was prejudicial.

Un-Mirandized Confessions Admissible; Sentencing Enhancements for Vulnerable Victim, Abuse of Position of Trust as "Medicine Man" Upheld

United States v. Chee, No. 07-4057 (10th Cir. 1/29/08) (published): The defendant, convicted of one count of aggravated sexual abuse while in Indian Country and sentenced to 235 months' imprisonment, followed by lifetime supervised release, appealed the district court's denial of his motion to suppress his oral and written confessions, and his sentence. The Court affirmed. Mr. Chee is a Navajo "medicine man" who performs traditional healing ceremonies. On three occasions, Mr. Chee had performed healing ceremonies for Ms. Perry, a 28-year-old woman with significant physical and mental disabilities, at her home at the request of Mr. Perry's grandmother, with whom Ms. Perry lived. Mr. Chee was asked to perform another ceremony. On the day requested, he went to the house. No one was home except Ms. Perry. Mr. Chee entered through an unlocked door, went to Ms. Perry's room where she was sleeping, woke her, and assaulted her. She told her grandfather that evening, who confronted Mr. Chee when he returned to the house. Mr. Chee said he was sorry several times and left. Later, Mr. Chee told Ms. Perry's grandmother that he had woken Ms. Perry the day before.

The grandparents reported the incident. A medical examination found signs of trauma. An agent tried to contact Mr. Chee to interview him, and ultimately left a business card with Mr. Chee's daughter, telling her that he wanted to talk with Mr. Chee about a gun Mr. Chee had found in a car he had bought at an action months earlier. Mr. Chee called the agent and set up an appointment. Mr. Chee went to the department and was taken into the Blanding police chief's office, rather than a formal interview room. Mr. Chee's wife was asked to stay outside. An investigator from the Navajo Nation Department of Public Safety as well as the federal agent were there. After conversation about the firearm, the agent began asking about the sexual assault on Ms. Perry. Mr. Chee denied it had occurred. The agent lied and said there was DNA evidence although he knew there was not any such evidence. Mr. Chee admitted he had sex with Ms. Perry against her will and, at the agent's suggestion, wrote a letter of apology to Ms. Perry and her grandmother. Mr. Chee was not given his Miranda warnings.

The Court agreed that Mr. Chee was subjected to interrogation. However, it affirmed the district court's denial of the motion to suppress on the grounds that Mr. Chee was not "in custody" because the interview was less than an hour, and because Mr. Chee was told he was free to leave and in fact did leave afterwards. The fact that the topic shifted to the sexual assault did not transform the situation into custody.

The Court also rejected Mr. Chee's challenges to his sentencing. He argued on appeal that the district court failed to make sufficient findings regarding whether Mr. Chee had an extraordinary physical impairment justifying a departure under USSG 5H1.1 and 5H1.4. The Court refused to address the issue because it was not raised before the sentencing court.

He also challenged the sentencing enhancements for use of force under 2A3.1, for vulnerable victim under 3A1.1, and abusing a position of trust as a medicine man under 3B1.3. The Court of Appeals found that all three enhancements were warranted.