Wednesday, June 25, 2008

Argument that Evidence was Improperly Admitted Rejected; Life Sentence Remanded for Resentencing

United States v. Cerno, ___F.3d___, 2008 WL 2502526 (10th Cir. 2008)

Efforts to reverse the trial court’s admission of inflammatory and irrelevant information in a child sex abuse prosecution were rejected by the majority. McConnell dissented. However, the COA did grant resentencing for the defendant.

Evid. R. 402, 404(b) and 403: The only evidence against Defendant was his 16-year-old niece’s accusations. The trial court originally ruled that the following evidence was inadmissible: Victim and her family returned home unexpectedly early one evening to find Defendant passed out drunk while watching an adult porn video, with his penis exposed. After Defendant testified and was cross-examined, and after the trial court continually denied the government’s request to get into the evidence, the court reversed its ruling, determining that Defendant’s testimony that drinking did not impair his judgment, and that he was in control of his senses when he drank, allowed for impeachment with the evidence. That is, passing out drunk with his penis exposed showed that he lost judgment when drunk, and impeached Defendant’s truthfulness when he denied that he lost judgment. The COA said the evidence had some, not significant impeaching relevance, it had the potential of being and was undoubtedly prejudicial to the Defendant, but the trial court did not abuse its discretion, since it is in the front row seat, of determining that the prejudicial effect did not substantially outweigh the probative value of the evidence. Furthermore, as impeachment evidence, it was not improperly admitted under FRE 404(b).

The district court committed reversible, procedural error in refusing to consider, as a matter of law, Defendant’s mitigation argument that evidence of the minimal amount of force involved would support a lower sentence (as a first offender, he received a life sentence for 2 counts of touching and 3 counts of digital or oral penetration).

Dissenting in regard to the evidentiary issue, McConnell agrees with the determination that the evidence was prejudicial, and points to the district court’s original refusal to admit it as an unwavering determination that it was prejudicial. He disagrees with the majority determination on relevance. He would find it not relevant at all (thereby bypassing the majority’s need to determine whether there was an abuse of discretion in the district court’s FRE 403 weighing).

Sentence Affirmed in Mann Act Case

United States v. Scott, ___F.3d___, 2008 WL 2502524 (10th Cir. 2008)

The district court’s calling and examining a witness in support of the higher sentence did not violate Due Process and show judicial partiality, and did not entail the judge acting as an advocate. The court has the power to call witnesses at sentencing and did not abuse its discretion in so doing in this case.

Procedural reasonableness: No error in applying vulnerable victim guideline enhancement in Mann Act conviction. Defendant did not contest the girl’s characteristics of fragility, use of meth, immaturity, runaway status, and was aware of at least some, though not all, of them after first encountering her and during the commission of the offense. No error in applying guidelines' organizer enhancement–one of Defendant’s prostitutes assisted him in the business and was a participant in the offense, and not merely just another of his prostitutes.

Substantive reasonableness: The 120 month sentence–greater than the 87 month GL sentence–was reasonable (SHORT discussion, a post-Gall brevity we might see more often).

No ex post facto violation in imposing an upward variant sentence for pre-Booker crime. Avoiding any decision regarding whether Defendant had fair warning that his sentence could be so far above the guidelines, the court held that he did have fair warning under the guidelines. It reached this decision by engaging in a series of re-calculations–what if he did not receive an acceptance reduction, for example–which would bring the guidelines calculation within the range of the 120 month sentence he received.

DWI Not a Predicate for Career Offender Definition

United States v. Tiger, ___F.3d___, 2008 WL 2498052 (10th Cir. 2008)
In a Begay remand, the COA extends Begay from the determination that a DWI does not satisfy the statutory ACCA “crime of violence” definition to a determination that a DWI does not satisfying the USSG Sec. 4B1.1 career offender definition (4B1.2(a)) for crime of violence.

Tenth Affirms that Cooperation is the Only Basis for Sentences Below Mandatory Minimum

United States v. A.B., ___F.3d___, 2008 WL 2498026 (10th Cir. 2008)
Government moved for a sentence below the mandatory minimums for drugs and a gun in light of Defendant’s cooperation. COA ruled that, in keeping with its precedent in Campbell, which remains unaffected by Booker, a sentencing court can sentence below the mandatory minimum only for cooperation, and cannot consider other mitigating facts that might support either a downward departure or presumably a variance, to further decrease a sentence below that statutory minimum sentence. The COA left open Defendant’s alternative argument–can the sentencing court “time” its consideration of mitigating facts to, for example, first vary the sentence downward to the mandatory minimum threshold, and then use the cooperation facts to move the sentence further down below the mandatory minimum sentence? The COA found that the district court did, silently and in its own mind rather than explicitly and on the record, consider Defendant’s mitigating facts before it engaged in the cooperation departure.

Tuesday, June 24, 2008

Defendant's Sentence Improperly Enhanced Based on Prior Military Conviction

U.S. v. Brown, -- F.3d --, 2008 WL 2485933 (10th Cir. 6/23/08) - sentence for possession of child porn was erroneously enhanced under 18 U.S.C. § 2252A(b)(2) based on Mr. Brown's previous conviction under Article 134 of the Uniform Code of Military Justice. The statute provides that prior convictions "under this chapter" count as sentence-enhancers and Mr. Brown's prior conviction was for a violation of the catch-all provision of Article 134, not § 2522, even though the military court assimilated the elements of the prior crime from § 2252 and the elements of Mr. Brown's prior crime were identical to the elements of the enumerated sentence-enhancer. Plain language rules and does not produce an absurd result.

Wonderful Resource for Pro-Defendant Case Law

Are your eyes blurring from looking at the endless cases where the defendant lost? Wouldn't you like to read something where the defendant won? Here to the rescue is Federal Convictions Reversed, a 37-page resource edited by Alex Bunin, Federal Defender for the Northern District of New York. This lists only cases in which the defendant was successful on a variety of issues, including search and seizure, indictments, jury instructions, admission or exclusion of evidence, expert testimony, and various crimes (just to name a few of the many topics listed). Download it, print it, USE IT! Federal Convictions Reversed might be your ticket to success!

Seriously, it's very useful.

Third Time A Small Charm for Defendant

United States v. Wittig, ___F.3d___, 2008 WL_____, No. 07-3051 (10th Cir. June 17, 2008)
Defendant’s third sentencing appeal (won the previous 2, and sentence went from 51 to 60 to the current 24 months imprisonment). The 24-month sentence was a variance from 0 to 6 months in a fraud case, but Court says it was procedurally and substantively reasonable under 18 USC 3553. Previous Wittig decisions held certain guideline enhancements were inapplicable, but that does not mean they could not be considered under 3553–perhaps “a fine point,” said the court, but the guidelines can act as guideposts.

What Defendant did win this time is a remand to remove an occupational restriction as a supervised release condition–that he not take any executive or professional position that involves engaging in financial negotiations without court approval. Defendant’s criminal conduct in this case did not involve an abuse of his management position. Moreover, the court did not find that there was a danger of Defendant engaging in similar criminal behavior in the future. It was not imposed for the minimum amount of time necessary. In short, the condition did not comply with 18 USC Sec. 3583(d) and 3563(b).

Unconstitutional Search of Trailer Does Not Taint Search of Truck's Cab; Dog Provided PC

United States v. Forbes, ___F.3d___, 2008 WL_____, No. 07-2191 (10th Cir. June 17, 2008)
Court of Appeals holds that the independent source doctrine applies to a search of the tractor portion of a tractor/trailer rig, when the trailer portion was unfruitfully searched first, presumably in violation of the Fourth Amendment. When border patrol agents found nothing in their unconsented-to search of the trailer, they took a dog around the outside of the cab section. The dog alerted, thus establishing probable cause, and the border patrol found marijuana in the cab after a search. The dog alert was a source independent of any preceding unconstitutionality. The Tenth Circuit rejects defendant's claim that there must be two discrete searches for the independent source doctrine to apply.

Thursday, June 12, 2008

Notice Requirement of FRCP 32(h) Doesn't Extend to Variances

Irizzary v. US, No. 06-7517 (S.Ct. 6/12/08): Federal Rule of Criminal Procedure 32(h), requiring the sentencing court to give notice of a potential upward departure on a ground not specified in a PSR or pre-hearing submissions, does not apply to variances from a recommended guideline range. Any constitutionally protected expectation that a defendant will be sentenced in the presumptively applicable guideline range did not survive Booker. The due process concerns that existed under a mandatory guidelines system no longer apply. Furthermore, the rule refers only to departure, and "departures" and "variances" are not the same: a departure is a term of art that refers only to non-Guidelines sentences imposed pursuant to the guidelines. A special notice requirement could create unnecessary delay. The Court trusts the district court to make sure the parties will have an adequate opportunity to confront and debate the issues. The appropriate response to surprise is to consider a continuance when a party has a legitimate basis for claiming the surprise was prejudicial.

Opinion authored by Stevens, joined by Roberts, Scalia, Thomas and Alito. Breyer dissented, joined by Kennedy, Souter and Ginsburg.

The dissenters would read the reference to "departures" in the Rule to apply to variances, finding no meaningful distinction between the two. They also would find that the underlying purpose of Rule 32(h) requires applying it to variances.

Wednesday, June 11, 2008

Wire Fraud Convictions Reversed, But Related Fraud, Laundering Convictions Upheld

U.S. v. Redcorn, -- F.3d --, 2008 WL 2332005 (10th Cir. 6/9/08) - reversal of wire fraud convictions of defendants who were also found guilty of embezzlement from a health care benefit program and money laundering. There was insufficient evidence to show that the defendants' transfers of funds to out-of-state investments accounts were part of the plot to defraud. The indictment was sufficient because it gave adequate notice to defendants that they needed to defend against embezzling from a health care benefit program. The court rejects the appellants' argument that the McCarran-Ferguson Act, which provides that state law generally governs insurance matters, preempts the applicable federal criminal statute. Defendants' Brady claim that the government withheld evidence was not raised below and did not meet the plain error standard. The district court reasonably concluded that newly discovered evidence was not significant enough to be likely to result in acquittal. As for sentencing, the district court properly found the underlying sentencing facts.

District Court Could Properly Refuse Attempted Guilty Plea to Two of Four Charges

U.S. v. Martin, -- F.3d --, 2008 WL 2332049 (10th Cir. 6/9/08) - Mr. Martin was convicted of two assault counts and two rape counts. The district court's refusal of Mr. Martin's attempted plea to the two counts of assault is upheld. While the Court expresses doubt that the district court properly relied on the need to avoid confusing the jury and complicating the evidentiary issues, it affirms based on failure to establish a factual basis for the plea. Denial of instruction on apparent consent from a § 1983 case was proper because it inaccurately equated apparent and actual consent and failed to explain how either form related to the elements the jury was required to find. The beating and rape charges against Mr. Martin were properly grouped for sentencing purposes, and the bodily-injury enhancement was properly applied to the sexual assault charges. There was no clear error in denying an acceptance-of-responsibility adjustment.

Tuesday, June 10, 2008

Using a Gun as a Club is "Brandishing" Under 18 USC 924(c)

U.S. v. Bowen, 2008 WL 2232261 (6/2/08) (Published) - Using a firearm as a club constitutes "brandishing" a firearm under 18 U.S.C. § 924(c)(1)(A).

First, the 10th made clear the question whether "brandishing" occurred is a sentencing determination to be made by the district court, not a matter for the jury [this is okay under Apprendi, etc., because the determination establishes a mandatory minimum, but does not raise the maximum of life, see Harris v. U.S., 536 U.S. 545 (2002). The 10th noted the defendant did not raise as an error the court's submission of the question to the jury.]. "Brandishing" is a more egregious form of "using" the gun. It requires displaying the gun and an intent to intimidate another. More than "use" of the gun occurred here because the clubbing of the victim included a making known that the gun was present [by hitting the victim with it] and it intimidated the victim to do the culprits' bidding. While the evidence established the clubbing occurred as retaliation, the evidence also showed the clubbing intimidated the victim.

There was sufficient evidence to prove a nexus between the use of the firearm and the underlying crime of retaliation against a witness. There was also sufficient evidence to establish the defendant aided and abetted the use of the gun because he had knowledge of a co-conspirator's use of the gun and knowingly and actively participated in the underlying crime by helping to beat up the victim. The 10th notes its aiding and abetting requirements are different from the vast majority of circuits, who require the intentional facilitation or encouragement of the use of the firearm, not just of the underlying offense. But, foreclosing a chance for en banc or S.Ct. review, the 10th holds that, even under the other circuits' standard, there was sufficient evidence by virtue of the defendant's participation in the beating.

The 10th did remand for the correction of the written judgment, which reflected a 96-month sentence when the d.ct. had orally announced an 84-month sentence. The oral pronouncement prevails over the written judgment.

Friday, June 06, 2008

Suppression Motion Properly Denied for Defendant Who Asked Cops to Search Home for Exculpatory Evidence

US v Pikyavit, No. 07-4113, 2008 WL 2265154 (Tenth Cir. June 4, 2008) (published): This defendant, in attempting to get out of one jam, got himself into a worse one. Mr. Pikyavit was arrested and jailed, along with four other men, after there was a fight outside his home. While he was in jail, his brother told him that there was evidence in the house that proved Mr. Pikyavit was not the aggressor in the fight. He asked two officers to go to his house to view this exculpatory evidence. He also said the house would be unlocked. The officers went over to the house, and had to slip the lock using a plastic card. While looking for the evidence Mr. Pikyavit claimed was there, they saw ammunition in plain view. They then went and got a search warrant, and a gun and more ammo were found. Based on this evidence, Mr. Pikyavit was convicted of being a felon in possession.

He appealed the denial of his motion to suppress, arguing that the search exceeded the scope of his consent. The COA rejected his argument that he didn't consent to entry if the door was locked, concluding that the officers could have reasonably concluded they could enter even if the doors were locked so long as entry could be done without damaging the property because Pikyavit didn't expressly limit his consent, he initiated the encounter with the police, and he wanted the search to occur quickly because he hoped the officers would find evidence to exonerate him in connection with the fight. Defendant additionally argued his consent did not include the rooms off the main hallway, but only the living room and kitchen. However, there was evidence that Pikyavit asked the officers to search the entire house because exculpatory evidence could be anywhere.

Wednesday, June 04, 2008

Refusal to Allow Evidence of Defendant's Good Character Results in Reversal

United States v.Yarbrough, ___ F.3d ___, 2008 WL 2246969 (10th Cir. 2008)

In a fairly surprising defense win, the Court reverses Defendant’s conviction after trial on obstruction of justice-related charges, because the trial court refused to admit Defendant’s evidence of his good character. Defendant was investigated for being a “dirty cop,” based on his giving his buddy tips about ongoing police investigations of the buddy.

First, the Court disposed of two other issues against the Defendant, holding: (1) the government made a prima facie showing that police reasonably minimized interception of non-pertinent phone calls under the wiretap warrant–calls under 2 minutes long are not even considered under minimization analysis; (2) evidence was insufficient to support giving of entrapment instruction–there was no evidence Defendant was induced by the government. The government did not create the crime, but merely gave Defendant the opportunity to participate. There were no coercive actions by the government.

The Court reversed based on the third issue. The defendant proffered character evidence of his integrity and status as a law-abiding, trusted police officer, under FREs 404(a)(1) and 405, and argued that the evidence was directly relevant to the charges that he corruptly impeded an investigation (he admitted the actions, but testified that he told his buddy because they were friends, because his buddy was clean, and because Defendant thought the main investigating cop was overreaching). The Court found that the district court abused its discretion in refusing the evidence, because its reasoning was wrong. Rather, “character evidence is admissible in cases, such as this one, where the sole issue before the jury is whether a defendant undertook his undisputed acts with a prohibited state of mind.” Furthermore, the error was not harmless.

Texas Assault of Public Servant Not a Crime of Violence

United States v. Zuniga-Soto, ___F.3d ___, No. 06-2364 (10th Cir. 2008)

A very nice defense win in an illegal reentry case. Using the Taylor categorical approach, the Court determines that Defendant’s prior conviction for assault of a public servant under Texas law was not a crime of violence. The Texas statute allows convictions for reckless conduct and, therefore, does not require the active use of physical force as required under “developing case law” (Leocal) for commission of the crime. USSG Sec. 2L1.2's “crime of violence” definition is the same as 18 USC Sec. 16, and negligent and reckless mens reas do not satisfy the definition. Nice to get recklessness into the fold.

USSG Sec. 2L1.2's “as an element” provision refers to the elements of the statute underlying the prior conviction, not the facts underlying the prior offense. In conducting the Shepard part of the analysis, the Tenth Circuit clarifies that consultation with the Shepard-approved documents -- plea hearing, etc. -- is not to determine if violence in fact was used in the commission of the earlier offense, but to determine under which portion of the broad statute the defendant was convicted. Otherwise, there were no Shepard-type documents introduced in this case from which the district court could have made the proper determination.

NOTE: The court did not reach Defendant’s second argument because it did not need to; it would have been reviewed under plain error. The Court said it was a valid argument in the final footnote in the opinion.

Tuesday, June 03, 2008

Gov't Concedes Plain Error in Applying 4B1.2 COV Definition in Reentry Context

Arreguin-Aguilar v US, 2008 WL 460975 (5/27/08) - A government concession of reversible plain error in the § 2L1.2 context. The S.Ct. vacates and remands based on the government's concession that the imposition of a 16-level enhancement for possession of a concealed weapon as a crime of violence under § 2L1.2 was plain error. Both parties at the d.ct. and circuit court level had agreed the offense was a crime of violence on the mistaken assumption that the § 4B1.2 definition of crime of violence applied in the § 2L1.2 context.

A few instructive, unpublished 10th Circuit cases

U.S. v. Matias-Medina, 2008 WL 2097418 (5/20/08) (unpub'd) - The 10th remands for reconsideration of whether a Colorado 3rd degree assault was a crime of violence under § 2L1.2. The 10th could not tell if documents acceptable under Shepard were consulted as to whether the defendant was found guilty of the requisite elements, where the PSR only quoted from a "PSR" (?) from a prior deportation proceeding.

U.S. v. Clarkson, 2008 WL 2217257 (5/29/08) (unpub'd) - The government failed to present sufficient proof the defendant possessed stolen mail where the storage unit in which the stolen mail was found was rented to the co-defendant, and the co-defendant listed the defendant as having authority to use the unit, but there was no evidence the co-defendant ever gave the defendant the access code and key.

Mendiola v. Mukasey, 2008 WL 2222018 (5/30/08) (unpub'd) - The defendant's possession-of-a-controlled-substance offense was an aggravated felony, despite Lopez v. Gonzales, 549 U.S. 47 (2006), because the alien had previously been convicted of a controlled substance offense and a second controlled substance conviction would have subjected the alien to a felony punishment under federal law, 21 U.S.C. § 841(a). So, without saying so, the 10th essentially applied the recent Rodriquez rationale in the immigration context.

U.S. v. Merino-Garcia, 2008 WL 2175338 (5/27/08) (unpub'd) - Hopefully just a careless statement in a non-precedential decision by Judge McWilliams, and not a reasoned opinion about the impact of Gall and Kimbrough, but the 10th says the Guidelines' assertion that family ties and responsibilities are ordinarily not relevant applies to variances as well as departures.

U.S. v. Pena, 2008 WL 2175356 (5/27/08) (unpub'd) - The defendant did not express his desire to represent himself explicitly enough when he said: "can I represent myself?" and received no response, in the midst of a discussion of his complaints against his current counsel. Interestingly, counsel helpfully explained: "I think this is just another ploy to get a continuance with another attorney."

Davis v. Cline, 2008 WL 2043292 (5/14/08) (unpub'd) - The Kansas courts' rejection of the petitioner's Brady claim. though perhaps not what the 10th would have done, was not contrary to, or an unreasonable application of, S.Ct. law, where the state did not disclose evidence that another person committed burglaries in the same way as the petitioner was accused of committing the charged burglaries. The 10th affirmed that materiality is assessed on a sliding scale depending on the specificity of evidence requests the defense makes. So, making specific evidence requests makes a difference.

Padilla v. Enzor, 2008 WL 2039274 (5/13/08) (unpub'd) - The plaintiff prisoner did not have a constitutional right not to be charged excessive prices for phone calls.