Gov't Cannot Unilaterally Conclude Plea Agreement Breached to Justify Arguing for Higher Sentence

United States v. Cudjoe, ___ F.3d ___, 2008 WL 2893130 (10th Cir. 2008)
Government breached “the spirit and the letter” of the plea agreement in which it promised that it would stand mute, though would not support, any request by Defendant for a 30 year sentence.

The agreement was relatively complicated in its dos and don’ts: the government retained the right to argue for a higher Guideline range, for application of specific Guideline enhancers, and retained the right to argue for and present evidence in support of additional Guideline adjustments and sentencing factors. It further reserved the right to change its position if new information came to light. Finally, the deal was off if Defendant said anything or took a position that was not factually accurate. At sentencing, Defendant prevailed on a Guideline challenge which brought his Guideline range down to 30 years to life. The government argued sort of obliquely for the life sentence. Defendant reminded it of its promise to stand mute when he asked for 30 years, the government said something weird indicating that Defendant took a factually inaccurate position, and Defendant got 420 months.

(1) Defendant did not breach the plea by objecting to one of the Guideline enhancers–the plea allowed him to make objections to the Presentence Report. PLUS, the government is not entitled to breach its agreement if it thinks the Defendant has breached his, without bringing it to the attention to the court for its ruling on the matter. THe goernment is bound by its promise until the court rules otherwise.

(2) By advocating a life sentence, the government breached its promise. Defendant’s remedy is re-sentencing, and not “specific performance” of a sentence of 30 years, but specific performance of the government remaining silent.

"Vertical" Collective Knowledge Justified Stop

United States v. Chavez, ___ F.3d ___, 2008 WL 2893057 (10th Cir. 2008)
Based on collective knowledge doctrine, state policeman, who had no probable cause, could legitimately stop and search Defendant’s vehicle at the direction of DEA agents who did have probable cause to stop and arrest Defendant. (The stop was what the Court of Appeals termed a putative headlight infraction). The Court of Appeals calls this “vertical” collective knowledge: one officer has probable cause info but does not communicate it all–just the conclusions justifying probable cause–to the second officer.

Former Border Patrol Agents' Convictions Largely Affirmed

This is a Fifth Circuit decision, but it happened in El Paso, TX, right next door to me, so I'm including it here. The decision is available here.

The Fifth Circuit yesterday mostly affirmed the convictions and sentences of former Border Patrol agents Ignacio Ramos and Jose Compean, convicted of various crimes after they shot an unarmed drug smuggler as he ran back to Mexico (he succeeded in escaping, too). The Court affirmed the convictions for assault, discharge of a weapon in the commission of a crime of violence, and deprivation of civil rights, and reversed the convictions for tampering with an official proceeding.

The agents were engaged in routine law enforcement near Fabens, TX, when they chased an alien drug smuggler in a van as he sped towards the border. He abandoned the van and ran on foot for Mexico, with the agents chasing him. They fired their weapons several times and hit him once, in the buttocks, but he made his get-away. The agents then covered up the incident, by picking up the spent shells and not reporting the occurrence. Unfortunately for the El Paso agents, the victim was a personal friend of an Arizona Border Patrol agent, who learned of and subsequently initiated an investigation into the shooting. Ultimately, the bullet was removed from the victim and matched with Ramos' weapon.

The Fifth had little patience for the pair's claim of insufficient evidence, saying:
"The jury was the fact-finder. The jury heard all of the evidence. The jury returned the verdict. The jury did not believe the Border Patrol agents. It convicted them. The government's evidence, if believed, is sufficient to uphold the convictions. And that is pretty close to the bottom line on guilt or innocence of these agents."

Apparently responding to the media hue and cry over the lengthy sentences imposed on the defendants -- 11 years and one day for one, and 12 years for the other -- the court noted that the bulk of the sentences was the result of the mandatory 10-year sentences for the 924(c) convictions.

In a lengthy discussion, it rejected the defendants' claims that the trial court improperly limited their presentation of testimony and the cross-examination of the victim, Aldrete-Avila, by preventing them from eliciting evidence of the value of the drugs Aldrete-Avila was transporting at the time of the shooting and his alleged involvement in another incident of drug smuggling. There is an interesting discussion of how defendants' sixth amendment rights intersect and are affected by a witness's fifth amendment privilege and the effect of the immunity agreement the prosecution had with Aldrete-Avila.

The Fifth Circuit rejected the agents' argument that the application of 18 USC 924(c) violated the defendants' due process rights because the agents had no warning that the statute could apply to law enforcement officers carrying out their duties. The Court made clear that its analysis assumed that the officers acted without lawful justification, and the court was not considering whether 924(c) could be applied to officers otherwise acting lawfully in carrying out their duties. The court looked at the text of the statute and concluded that it applied to "any person" without any exception for law enforcement officers, and that a police officer's unjustifiable shooting of a victim who poses no threat is a crime of violence.

However, the Fifth reversed the 1512 convictions, concluding that an internal agency investigation is not an official proceeding within the meaning of the statute. The court concludes that, even if it was not sure of this interpretation, the meaning of the term is ambiguous and accordingly it actually applies the rules of choosing the more limited interpretation and lenity. So, the agents get a resentencing on the remaining counts, but they still have to get at least 10 year sentences.

U.S. v. Rodriguez, 2008 WL 2736747 (7/15/08) (unpub'd) - In an unauthorized use of a credit card case, the 10th affirms variance from 33 months to the stat max of 48 months on the grounds expressed by the district court that any term of incarceration would "simply be an interruption in the defendant's criminal career."

U.S. v. Lester, 2008 WL 2751240 (7/16/08) (unpub'd) - A one-year-old exchange of e-mails indicating the defendant purchased a silencer established probable cause for the presence of a silencer in the defendant's home. The warrant affidavit said silencers are typically kept for a long time.

Tigert v. Higgins, 2008 WL 2747002 (7/16/08) (unpub'd) - The prisoner did not state a valid claim for relief where he was disciplined for refusing a work order because his back needed medical attention and couldn't handle the work. "Inmates cannot unilaterally decide to disobey orders that they perceive (even correctly) to be unjust or illegitimate."

U.S. v. Battres, 2008 WL 2746993 (7/16/08) (unpub'd) - A photo of an adult sexually penetrating a prepubescent child automatically calls for a 4-level enhancement under § 2G2.2(B)(4) as "portraying sadistic or masochistic conduct or other depiction of violence," whether or not the government proves the adult derived sexual pleasure from the act and even if the child's facial expressions or the staging of the photo present the heinous acts in a "positive light."

U.S. v. Alvarado-Molina, 2008 WL 2746249 (7/15/08) (unpub'd) & U.S. v. Holtz, 2008 WL 2755449 (7/16/08) (unpub'd) - Following the the Supremes' remand for reconsideration in light of Gall, the Tenth found no mandatory application of the Guidelines where a within-Guidelines sentence was imposed. In contrast to U.S. v. Kittredge, 2008 WL 2766162 (7/17/08) (unpub'd) where, without discussion of the facts, the 10th remands to the district court in light of the Supremes' Gall remand.

U.S. v. Dawson, 2008 WL 2736740 (7/15/08) (unpub'd) - The 10th applies plain error review to the question whether the district court erred by failing to append to the written judgment its ruling that resolving a factual dispute was unnecessary to its sentencing determination.

Leadership, Firearms Enhancements Upheld

U.S. v. Sallis, 2008 WL 2780594 (7/18/08) (Published) - The evidence supported a leadership upward adjustment. Supplying or fronting drugs is not enough to justify such an enhancement, but here, the defendant and his twin brother exercised joint decision-making authority re: the amount of drugs to purchase etc. and recruited others, It was also okay to enhance for firearm possession under USSG § 2D1.1, despite the acquittal on the firearm possession charge. There was evidence the defendant drove his truck while it contained both a gun and drugs.

U.S. v. Sallis, 2008 WL 2787523 (7/18/08) (unpub'd) - The twin brother of the defendant in the above case could also receive a leadership enhancement. There can be more than one person in an organization who qualifies for the enhancement. More troubling, the 10th does not decide the question whether the defendant was a career offender because the district court varied downward to the upper limit of the range that would have been applicable without the career offender status. The 10th never discussed whether the district court would have varied from the lower correct range. Instead, the 10th noted the district court found the ultimate sentence to be reasonable after considering the § 3553(a) factors. So resentencing would produce the same result. Right? But isn't the correct guideline range an important § 3553(a) factor that might change the d.ct.'s analysis? The 10th did find it was plain error to impose a 30-year sentence when the statutory maximum was 20 years. But the actual sentence was not affected since the defendant received a 30-year concurrent sentence with respect to a different charge.

Numerous IAC Claims Rejected; Death Sentence Affirmed

DeLozier v. Sirmons, 2008 WL 2780595 (7/18/08) (Published) - The Court of Appeals affirmed another death sentence. The 10th reviewed, almost always under the stringent AEDPA standard, a number of ineffective assistance of counsel claims, holding in each case that counsel was not deficient. These included:

(1) Not peremptorily challenging 2 prospective jurors and not seeking excusal for cause for another where the jurors indicated they had a hard time imagining voting for anything but death. E.g., "Q: if you were instructed to do so, could you give all punishment options fair consideration? A: Yes, but I don't like it; A: It would be real hard. I couldn't give you an honest answer."

2) failing to object to the admission of evidence of the petitioner's priors for mistreating and killing a police dog. It would have been admitted anyway.

(3) failing to call witnesses because the testimony was supposedly marginally probative or could bring up the witness's incriminatory prior statements.

(4) failing to further cross. Counsel's decisions regarding cross-examination presumptively arise from sound trial strategy and here counsel did a pretty good job of crossing and further impeachment would have produced "limited dividends."

(5) failing to challenge more the claim that the petitioner shouted to one jail inmate in front of others: "I've already killed two people before, I won't hesitate to kill you." In light of the prior statements of the non-testifying person to whom the threat was actually made, counsel could have reasonably considered it unproductive to look for other inmates who would say otherwise. It was also okay not to present evidence of the physical jail layout that might undermine the testifying witness's claim to seeing the petitioner through a tiny cell window. It might have led to conflicting evidence. It was better to not emphasize the threat and attack on cross the credibility of the witness.

(6) not objecting to cross of the petitioner. It was not a comment on silence to ask the petitioner: "how long did it take you to come up with the story you just told the jury?" The requisite manifest intent to comment on silence will not be found if some other explanation for the comment is equally plausible. Here the state was just commenting on the ridiculousness of the story.

(7) failing to present certain mitigating evidence. That claim was procedurally defaulted because the appellate lawyer, who was different than the trial lawyer, could have raised the claim on appeal and asked for a remand, which she obtained regarding a different claim. Appellate counsel acting reasonably in not raising other claims because trial counsel had presented the "gist" of the additional testimony the petitioner now claims should have been presented. Appellate counsel was also reasonable not to find an expert who would have said the petitioner's meth consumption would have given the petitioner a high potential for unprovoked violence and that his bad behavior directly reflected his horrible childhood. Unfortunately, counsel did find another expert who didn't say such helpful things. Presenting the testimony of the expert she did find would have been a "double-edged" sword, which evidence counsel is not required to put on. "Counsel is not required to keep hiring experts until the most favorable one possible is found."

Importantly, the 10th did acknowledge that a state court evidentiary hearing must be fair to deserve credit in federal court. But here the hearing was fair, despite the state judge's campaign promise to put people in jail, public opinion of the crime and the judge's "predisposition regarding counsel's performance." And: "Even if the trial judge's evaluation of the hearing evidence could be questioned on bias grounds, the petitioner points to no errors in the evidence presentation. Given that evidence, the judge's evaluation was eminently reasonable and commended itself to every later court addressing the issue." Bias? Not a problem as long as the court sounds fair and other courts agree with it.

Prisoner Entitled to Hearing on Application of Revised Good Time Policy

Henderson v. Sirmons, 2008 WL 2791911 (10th Cir. 7/21/08) (unpub'd) - because the record is unclear re: how corrections officials applied good time policy revisions to pro se inmate here, district court erred in denying his ex post facto claim without an evidentiary hearing. The policies at issue were subject to the ex post facto prohibition in light of their lengthening of prisoners' incarceration and their enactment at the directive of the Oklahoma legislature, which rendered them "legislative in nature."

Judgment of Acquittal for Mortgage Fraud Defendants Reversed

United States v. Carnagie, ___ F.3d ___, 2008 WL 2807466 (10th Cir. 2008)
The Court of Appeals reverses the trial court’s grant of a judgment notwithstanding the guilty verdict on charges of conspiracy to defraud the United States and conspiracy to money launder. The two defendants were involved in a massive scheme involving many people--home buyers, real estate agents and mortgage loan officers–to create and use false documents to qualify for FHA mortgages. The pay-offs to the actors were qualifying for a loan, real estate commissions, and kickbacks from the commissions, respectively. The trial court reversed on the ground that there was a fatal variance in that there was evidence that supported many small conspiracies, but no evidence which would support one overarching massive conspiracy of which the two defendants were a part.

Read the opinion for a discussion of (1)proof of interdependence–an acting together for shared benefit–to support a single (wheel-type) conspiracy. The Court determined that there was not that proof of interdependency. (2) Variance and notice. The Court determined that there was no prejudice from the variance because the defendants had notice of all the smaller conspiracies they were alleged to have been linked to. (3) Prejudicial spillover of evidence of smaller conspiracies not involving the defendants but admitted to show the larger conspiracy. The Court ruled there was no prejudicial spillover.

Claim of IAC at Competency Hearing Rebuffed

Crawley v. Dinwiddie, ___F.3d ___, 2008 WL 2805410 (10th Cir. 2008)
Because there is no clearly established federal Supreme Court law regarding a counsel’s duty to refrain from pressing his client’s claim of competency in the face of evidence of incompetency, plaintiff could not meet the AEDPA standard in his challenge to his attorney’s effective assistance in arguing for his competency at a state competency hearing.

Drug Conspiracy Convictions Affirmed

US v. Smith, 2008 WL 2814809, 7/23/08 - Drug convictions and lengthy sentence affirmed. Defendant ran a drug ring and was indicted for conspiracy and multiple distribution and related counts. One of her confederates had been convicted of murdering two women (a third woman somehow survived despite getting shot 7 times). There was some reason to believe that the defendant ordered the hits in retaliation for the victims' stealing defendant's drugs and money from the confederate, but defendant was never charged in connection with this. At trial, the district court admitted evidence of the murders because there was evidence that they were related to the drug conspiracy; murders were therefore not "other crimes" evidence prohibited ay Rule 404(b). 10th agreed with this analysis, and also with the district court's refusal to give defendant's requested instruction that the government had to prove defendant's connection to the murders beyond a reasonable doubt because the government does not have to prove any overt act in a drug conspiracy case under 21 USC s. 846.

More troubling was the admission of photographs of the "bloodied, bullet-ridden bodies and blood-stained clothes." Although the 10th agreed with the defendant that the photos would likely have substantially more prejudicial than probative value because they added nothing but shock value to the testimony describing the murders, the presence of overwhelming evidence of the drug conspiracy, coupled with evidence linking the murders to the conspiracy and to the defendant, rendered any error harmless.

The defendant's remaining claims fared no better. First, the 10th rejected the defendant's Brady claims. Any error in the government's failure to disclose a police report of a conversation the defendant's former attorney, who was the government's last witness, had with a cop in which he admitted having smoked pot with the defendant at her house, was harmless. The other claimed errors, that the government failed to disclose deals with some of its witnesses in exchange for their testimony until the witnesses testified were not Brady violations at all. The 10th also rejected the defendant's claim that she was entitled to a new trial because the government had destroyed potentially exculpatory evidence by not recording the serial numbers of the monies it seized from her, but rather deposited all of it in a general asset forfeiture fund; the serial numbers were not exculpatory, the government offered an innocent explanation for its actions, and the defendant presented no compelling evidence that the government acted in bad faith. Next, the 10th rejected defendant's alleged errors relating to the chain of custody of drugs purchased by an undercover cop, because evidence establishing chain of custody need not be perfect, and any defects here went to the weight rather than the admissibility of the evidence, and her Batsonchallenge to the government's peremptory excusal of one black woman because the government offered race-neutral reasons for striking her and the defendant did not meet her burden of shoving discriminatory intent. Finally, the district court did not commit clear procedural error by applying the obstruction enhancement under USSG s. 3C1.1, based on testimony that the defendant had indirectly threatened or intimidated a witness after he appeared before the grand jury.

Tenth Reinstates Gay Prisoner's Civil Rights Claims Against Prison Officials

Howard v. Wade, et al, 2008 WL 2814821 - The 10th reverses summary judgment in favor of most prison official defendants in this Eighth Amendment failure to protect civil rights case.

The plaintiff, who is openly gay and of slight build, was repeatedly sexually abused and generally terrorized by members of a prison gang. He was transferred from one facility to another to get away from the gang, but the gang existed at the second facility, too, and members there found out about the plaintiff from members at the first facility and picked up where they left off.

Applying Farmer v. Brennan,511 U.S. 825 (1994), the 10th found that, taken in the light most favorable to the plaintiff, the evidence showed that the conditions of plaintiff's incarceration presented an objective substantial risk of serious harm, and that the officials had subjective knowledge of the risk of harm. The district court applied the wrong standard in evaluating the subjective knowledge prong, which requires that "an official 'must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.' Farmer, 511 U.S. at 837. This knowledge may be proved 'in the usual ways, including inference from circumstantial evidence, and a fact-finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.' Id. at 842 (citation omitted)." The 10th did affirm the Rule 12(b)(6) dismissal of the Complaint against one defendant, who was only a grievance review official at the central facility who never met the plaintiff, and whose knowledge of the circumstances was limited to what the plaintiff wrote in his official grievance forms.

Almost Mandatory is Advisory?

United States v. Covington, 2008 WL 2736753 (10th Cir. 2008)

This case’s lesson: if the district court says it understands that the guidelines are no longer mandatory, but also says but they are practically mandatory and it really has no choice but to impose the GL sentence, and does, the court has exercised its discretion. Here is the cut and paste of what the district court said:

"[A court is] bound by the laws that the Government passes. What laws Congress passes, I have to follow. If I don't follow them, then the Government could appeal and I would be reversed and we would have wasted everybody's time, so I have to follow them, too. When the Sentencing Guidelines were mandatory, we had absolutely no choice except to follow those prior to a year or two ago when they said they were advisory, but they are still given great weight and we are still bound to basically follow them, except in very unusual circumstances, or we just get reversed and [Mr. Covington] will be back where [he was], no matter what I did."

Seems to me this is prime fodder for a petition for certiorari.

Qualified Immunity Should Be Granted Cop who Administered Sobriety Test

Amundsen v. Jones, ___F.3d ___, 2008 WL 2737273 (10th Cir. 2008)
Reversal of denial of qualified immunity for cop in § 1983 case. Administration of roadside sobriety and toxicology test did not violate Plaintiff’s constitutional rights (cop stopped Plaintiff for weaving). Under Plaintiff’s version, the facts supported a reasonable suspicion that Plaintiff was intoxicated, prompting admission of the FST. Also, no Fourth Amendment violation when Plaintiff voluntarily agreed to the toxicology test.

Conviction for Attempting to Vacate ACCA Sentence Based on False Expungement of Prior Affirmed

U.S. v. Smith, 2008 WL 2699388 (7/11/08) (Published) - The defendant was convicted of 18 U.S.C. § 1623(a) for attaching a false document to a federal court motion. He attached a bogus state court order expunging a conviction to a 2255 motion and asserted that his sentence pursuant to the Armed Career Criminal Act should be vacated due to the alleged expungement.

The warrant to search a home, which noted a detached garage apartment, was not overbroad, even though it did not note the garage had a different address from the home address listed on the warrant. The officers reasonably failed to appreciate during their execution of the warrant that the warrant described the premises too broadly.

It was okay to introduce the defendant's statement in a taped prison call conversation that he was an armed career criminal. The statement showed the materiality of the false document and the defendant's motive. Troublingly, the 10th also agrees with the government's argument that the defendant "can't claim unfair prejudice for words he himself chose to use." Also troublingly, the 10th holds the defendant waived a challenge to the admission of another taped statement because he told the court he had no other objections to the recorded conversations and, [the 10th hints this would be enough], he affirmatively used the evidence, although he did not introduce it into evidence. The reasonable doubt instruction that said the defendant started off with a "clean slate" [which the defendant said implied he was on equal footing with the government] and that used the "hesitate to act" language [ unlike the criticized "willing to act" language] was okay. The d.ct. did not have to give the requested theory of defense instruction [that someone else had filed the document unbeknownst to him] because other instructions required a jury finding of knowledge of the falsity of the document. The 3-level enhancement for substantial interference with the administration of justice under § 2J1.3(b)(2) applied where the state court held a hearing to unseal the file regarding the supposedly expunged conviction, even though the evidence of the actual expenditures for the hearing "may have been limited." The 10th could not review whether the hearing was motivated simply by federal investigators because that determination required factual determinations that were not made because the defendant failed to raise the challenge below.

Defendant Failed to Show "Substantial Impairment" Rendered his Statements Involuntary

U.S. v. Burson, 2008 WL 2698214 (7/11/08) (Published) - Once an officer credibly testifies that the defendant making a statement was sufficiently in touch with reality so that he knew his rights and the consequences of abandoning them, the defendant has the burden to show his condition rose to the level of "substantial impairment" by drugs, alcohol, and/or exhaustion, etc. In this case, despite evidence that the defendant had not slept for days and had recently used meth and cocaine heavily, had rested his head on a table during the interrogation [he was "resigned," not tired] and did not respond to some questions or responded with a moan, the videotape and the officer's testimony [including that the defendant was "very cognitive"] established the defendant's statements were voluntary, knowing and intelligent. The defendant had to do more than just establish how much drugs he indulged in, he also had to show how the amount of drugs affected his awareness.

California Battery Conviction Not 2L1.2 Crime of Violence

U.S. v. Herrera, 2008 WL 2698644 (7/11/08) (unpub'd) - Although unpublished, this case deserves top billing because it's quite an achievement---a plain error reversal of a "crime of violence" § 2L1.2 16-level enhancement on rather esoteric grounds. The defendant was represented by CJA counsel Angela Arrellanes and Scott Davidson. The 10th held that the defendant's conviction for battery under California law was not a "crime of violence." First, the court engaged in a must-read discussion of when to apply the pure, and when to apply the modified, categorical approach. You apply the modified categorical approach, i.e., you can look at court documents, such as the indictment, etc., only when the statute in question can be divided into two or more separate element sets, e.g. a battery statute that can be committed by rude touching or by causing bodily injury. It is not enough that the statute covers both violent and non-violent offenses to trigger the modified approach. In this case the California statute only has one set of elements in every situation: (1) wilful and unlawful use of (2) force or violence, and (3) against the person of another. The statute could not be divided into those involving force and those involving violence because under California law "force or violence" is a term of art. So, the pure categorical approach applied. California law indicated a battery conviction could be committed by the "least touching." This did not amount to the use of the active, violent "physical force" required to qualify as a "crime of violence" under § 2L1.2. It did not matter that the battery could be committed in a violent way. The court could not look at the underlying court documents.

The 10th found the enhancement error to be plain, [the 2d prong of the plain error test] (despite the lengthy discussion to get to the point of finding error) because California state law was unanimous about the force required to constitute battery, the Ninth Circuit considered California battery not to be a "crime of violence" and, most significantly, because "an improper interpretation or application of the Guidelines is plain error." The 3rd and 4th prongs of the plain error test were met because the enhancement was substantial, the judge probably would give a lower sentence on remand and it is a miscarriage of justice for a defendant's incarceration to be significantly lengthened based on an improper legal interpretation. Far out.

Unpublished Decisions

U.S. v. Jacquez, 2008 WL 2694060 (7/9/08) (unpub'd) - The 10th finds the officer reasonably stopped the defendant because the license plate of the car he was driving was registered to a Tommy Largo and there was an outstanding arrest warrant for a "Tommy Largo." The Tommy Largo to whom the plate related was considerably older than the Tommy Largo who was wanted and the defendant. The officer made a reasonable mistake, the 10th holds. The 10th did not require the officer to first find out the physical characteristics of the plate owner or the wanted person, even though that would have been easy to do.

U.S. v. Fontenot, 2008 WL 2698646 (7/11/08) (unpub'd) - Under § 5K1.1, the d. ct. is supposed to give substantial weight to the government's sentence recommendation, even when the defendant helped a state prosecution concerning which the government had little knowledge. It was okay to consider the defendant's lack of rehabilitation as a factor in determining the degree of departure. While a court may reward a defendant only for substantial assistance, a court may refuse to depart, or depart less, based on other factors.

U.S. v. Marchand, 2008 WL 2699780 (7/11/08) (unpub'd) - Although Gall disapproved an appellate court requiring a d. ct. to give controlling weight to the benefits of a plea bargain, a d ct. may consider that factor under § 3553(a)(1).

U.S. v. Ohiri, 2008 WL 2698649 (7/11/08) (unpub'd) - The defendant could not show the government's suppression of a co-defendant's statement indicating he was innocent of one of the counts to which he pleaded guilty was material. He would not have elected to go to trial if he knew of that evidence, given the strong case the government had regarding many other counts dismissed as part of the plea. The defendant did not establish a conflict of interest because he did not show his debt of $35,000 to his attorney affected his attorney's performance. Experts were not retained because the defendant couldn't afford them and counsel was unprepared for trial because he was busy with another trial, not because the defendant owed so much money.

U.S. v. Fajri, 2008 WL 2699800 (7/11/08) (unpub'd) - The 10th indicates a defendant's sentence appeal will usually not be mooted if he has a supervised release term to complete, even if he has finished his prison term. The d. ct. erred when it applied the mandatory revocation provision of § 3583(g)(4) for failing more than 3 drug tests when the defendant only failed 3. But no plain error relief, since the court would have given the same sentence anyway.

U.S. v. Clark, 2008 WL 2698648 (7/11/08) (unpub'd) - Trial practice forewarning: the defendant could not prevail on his claim the government intimidated his witness into not testifying because the defendant had not proffered what the witness would have testified to. That the witness had been willing to testify for the defense is not enough.

U.S. v. Stroup, 2008 WL 2662494 (7/8/08) (unpub'd) - 10th affirmance of a d. ct. finding of a drug amount much higher than the parties had stipulated to.

In re Cline, 2008 WL 2673263 (7/9/08) (unpub'd) - Of interest to the many habeasphiles out there. The 10th makes clear that, while it's okay for a d. ct. to transfer to it a successive petition, rather than requiring the petitioner to re-file in the 10th, it's also okay not to transfer such a petition when there is no risk a meritorious claim will be lost absent a transfer, e.g. due to the statute of limitations.

U.S. Spencer, 2008 WL 2588647 (7/1/08) (unpub'd) - A rare example of a rehearing petition that paid off. Habeas petitioner pointed out his limitations period had been tolled longer than the 10th had initially thought because he had sought cert from the U.S. S.Ct. His petition was not time-barred.

Guatamalan's Pleas for Immigration Mercy Rebuffed

Vicente-Elias v. Mukasey, 2008 WL 2699399 (7/11/08) (Published) - The 10th defers to the immigration judge's determination that the economic hardships suffered by the indigenous people of Guatemala due to the refusal of Spanish-speaking Guatemalans to hire people who speak only indigenous languages did not amount to a threat to the alien's life or freedom. Employment discrimination, even when it results in the inability to afford education, food, etc., is not enough. The 10th also rejected the substantive due process argument that "the massacres of the Mayans in Guatemala in the 1980's sponsored by the United States shocks the conscience and therefore warrants equitable relief."

Gov't Didn't Improperly Comment on Defendants' Failure to Testify

U.S. v. Ivory, -- F.3d --, 2008 WL 2718813 (10th Cir. 7/14/08) - Court rejects defendants' claim of improper comment on their failure to testify in drug and conspiracy to murder a witness case. In arguing in closing that defendants used the work "money" as code for murder, prosecutor told jury that the only persons who used that code were witnesses the government could not call. This was a fair response to argument by defense that no witness testified that "money" was code for murder. Gov't was merely explaining why the jury must rely on circumstantial evidence to interpret the conversation at issue.
No dice on numerous sentencing arguments either, including enhancement for leadership role, evidence supporting drug quantity determination, and use of juveniles to drive stolen vehicle for use in murder plan. Blocking victim's car so she could not escape during attempted murder supported increase for physical restraint.

Interpreter Breaks Silence on Court Proceedings

A New York Times article discusses how a court interpreter, Erik Camayd-Freixas, has written an essay about how the illegal immigrant defendants -- many of them Guatamalen -- did not understand what was going on when they were prosecuted for document fraud following the raids at the Agriprocessors packing plants in Iowa. He discusses the sad details of the immigrants' cases and the wrenching decisions they made to accept plea bargains as the approximately 400 defendants were "processed" in federal court.

List of Federal Crimes Continues to Expand

The Heritage Foundation has issued a new report discussing the explosive increase in the number of federal crimes.

It says in part:

"The growth of federal crimes continues unabated. The increase of 452 over the eight-year period between 2000 and 2007 averages 56.5 crimes per year—roughly the same rate at which Congress cre­ated new crimes in the 1980s and 1990s. So for the past twenty-five years, a period over which the growth of the federal criminal law has come under increasing scrutiny, Congress has been creating over 500 new crimes per decade. That pace is not steady from year to year, however; the data indicate that Congress creates more criminal offenses in election years."

An appendix lists all the federal statutory provisions containing new crimes enacted between 2000 and 2007.

Suppressed Drugs Can Be Included in Guideline Calculations

U.S. v. Maytubby, -- F.3d --, 2008 WL 2635568 (10th Cir. 7/7/08) - the Tenth reaffirms precedent indicating that quantity of drugs suppressed because they were discovered during an unconstitutional search may be included in GL calculations.

No Search Warrant Required Where Wife's Probation Agreement Allowed Search on Reasonable Suspicion; Evidentiary Objections Rejected

US v. Blake, No. 07-8050, 7/3/08 - Denial of motion to suppress affirmed. Defendant's wife was on probation in a state case. Her probation agreement included a consent to search provision based on reasonable suspicion. She tested dirty for meth, so the probation officer called the cops, who tell her they have information that probationer's husband, the defendant, has been selling meth. Off they go together to defendant's residence, where she was present with her husband. Defendant lets them in and awakens his wife. Search produces meth, scales, packaging, and cash. There was reasonable suspicion to search, and wife's consent to search in her probation agreement dispensed with the necessity for a warrant. The 10th rejects defendant's Georgia v. Randolph argument that he did not consent to the search for the simple reason that he did not object at the time he let them in or after they started searching, finding it unnecessary to address how that case might apply if he had.

The defendant proceeded to trial, and on appeal raised evidentiary claims, the main one being a challenge to the admission of expert testimony from a narc about drug dealer practices. 10th holds that the district court erred by not performing its gatekeeping function and making the findings on the record required by Rule 702, the error arising from the district court's doubts about whether the rule applied at all, but the error was harmless. The 10th also rejects defendant's challenge to the admission of a statement his wife made during the search about where money in the safe had come from, because it was admitted only to show inconsistencies in her and defendant's statements about the source of the money and was therefore not hearsay or subject to the Confrontation clause. Finally, the 10th spends little time rejecting defendant's objection to the introduction of plea agreements of government witnesses.

No Suppression Despite Recklessly Made Factual Mistakes in Affidavit

US v. Garcia-Zambrano, No. 07-1261, 7/3/08 - Suppression of evidence for Delaware v. Franks violations reversed. While district court did not clearly err in finding factual inaccuracies in search warrant affidavit and determining that they were recklessly made, the 10th's de novo review of the legal sufficiency of what remained after the false statements were excised led it to conclude that the affidavit established probable cause.