Friday, January 30, 2009

CSI Yellowstone, or Whatever Happened to Bambi?

One bizarre unpublished criminal case.

US v. Belderrain, No. 08-8016: Government officials learned about an elk's head in a taxidermist's shop in Montana. In the investigation, Mr. Belderrain, the taxidermist, and others told the government that Mr. Belderrain had shot the elk in the Buffalo Horn drainage, an area outside Yellowstone National Park, while Mr. Belderrain was on an outfitting expedition. He entered into a plea agreement with the US Attorney's office in Montana that provided that, once Mr. Belderrain had pled guilty to state charges connected with the dead elk, he would not be referred to the US Attorney's office for the district of Montana for prosecution but that new information concerning violation of federal wildlife and/or criminal statutes would be referred for federal prosecution. Mr. Belderrain pled guilty to state charges of possessing unlawfully taken elk antlers and illegalities in the outfitting expedition. At the time of the plea, the government also knew that a headless elk carcass had been found near the National Park. Several months' later, the government linked the elk's head to the carcass, and prosecuted Mr. Belderrain for poaching.

The straightforward issue on appeal is whether the prosecution by the district of Wyoming violated the plea agreement reached with the district of Montana. The Court says no, basically because Mr. Belderrain lied about where he shot the elk. However, some interesting points are made along the way. One issue is, if all this happened in Montana, why did the district of Wyoming have jurisdiction? A footnote explains that, although the elk met its fatal end while standing in Montana outside of Yellowstone, Mr. Belderrain was standing inside Yellowstone when he shot it. He subsequently transported the head and antlers into and through the park, thereby possessing a firearm and illegally taken wildlife within Yellowstone National Park. Apparently the districts of Wyoming and Montana have joint jurisdiction over all of Yellowstone. Second, how did the government know the head in the taxidermist's shop belonged to the carcass? DNA tests.

Tuesday, January 27, 2009

Circuit Snippets

In the prosecution of Jeffrey Skilling, former CEO of Enron, the government sufficiently complied with its Brady and Giglio obligations by providing the exculpatory material, along with hundreds of millions of pages of other documents, and left it to the defense to figure out what it wanted, the 5th Circuit held. The 5th reasoned that the government did not simply dump the material, but rather provided a searchable electronic file, a set of documents it thought important, indices, and access to databases of related litigation. Additionally, the government was in no better position than the defense to find relevant material, and there was no evidence the government tried to hide the exculpatory material in bad faith. However, Skilling's convictions, including one for "honest services fraud," were affirmed. The court remanded for resentencing after concluding that the employees' 401(k) plan was not a financial institution for purposes of USSG 2B1.1(b)(14). US v. Skilling, No. 06-20885 (5th Cir. 1/6/09)

The 2d Circuit held that officers did not violate the 4th amendment by having a drug-detecting dog sniff the bushes around a defendant's back yard, and the drugs found in the bushes did not have to be suppressed. US v. Hayes, No. 07-0063 (2d cir. 12/24/08)

The 4th Circuit held that the federal law allowing for civil commitment of sex offenders, 18 USC 4248, exceeded Congress' legislative authority under the Constitution, and struck it down. The circuit court concluded that the statute does not fall within any of the enumerated powers granted to the federal government. US v. Comstock, No. 07-7671 (4th Cir. 1/8/09)

Direct deposit of salaries obtained by fraud were a sufficient use of the interstate wires to support a federal conviction for wire fraud, even if the direct deposits were required by the employer, the 7th Cir. held. US v. Turner, No. 07-1062 (7th Cir. 12/30/08)

Unpublished Decisions

Silvan W. v. Briggs, 07-4272 (1/23/09) (unpub'd) - It was okay to detain someone who was reasonably suspected of obstructing justice with respect to the state taking children from their parents, especially because the plaintiff was a police officer and might have been armed. It is permissible to search the contents of a cell phone found on an arrested person. While recognizing a seizure could occur when an officer requires someone not to remain where he is, the plaintiffs were not seized when an officer threatened to arrest them if they did not return home. The plaintiffs could have ended the phone call or simply refused to return home.

US v. Rosas-Caraveo, 2009 WL 141896, 1/22/09 - Bottom range sentence in this reentry case affirmed. Of note is the panel's refusal to adopt in this circuit a requirement to assess requests for downward variances based on cultural assimilation in light of various factors culled from cases from other circuits, including "the length of time the defendant has lived in the United States, whether he came to the United States as an adult or as a child, whether he was educated in the United States, any steps he has taken to establish residency or become a citizen, his familiarity with his country of origin and whether he has any children who reside in the United States." Instead, cultural assimilation is just one more ingredient in the 3553(a) stew.

US v. Waldon, 2009 WL 142041, 1/22/09 - Revocation of convicted bank robber's supervised release for committing misdemeanor offense of disorderly conduct by propositioning 12 year old girl in the public library affirmed. Defendant was cited for the offense and his PO filed a revocation petition. The district court essentially conducted its own trial and found the defendant guilty. There is no mention of what happened, if anything, on the citation itself.

Conviction for Felon-in-possession-of-ammo Upheld

US v. Turner, -- F.3d --, 2008 WL 161737 (10th Cir. 1/26/09) - affirmance of conviction for possession of ammunition by a previously convicted felon. District court properly denied motion to suppress results of search that followed arrest of Mr. Turner for driving with a suspended license. Mr. Turner argued that officers lacked probable cause to proceed after their search of a bag suspected to contain drugs was found to contain ammunition and they decided not to charge him on the suspended license after learning the feds wanted to charge on the ammunition. Officers merely needed reason to believe that any crime occurred. It did not matter that possession of ammunition is not a crime under state law. State law does not determine the reasonableness of a seizure under the 4th Amendment.

Jury instruction on joint occupancy and constructive possession properly stated that mere proximity to the ammunition did not establish knowledge of and access to it. There was insufficient evidence to support a "momentary or transitory control" instruction.

District court properly restricted cross-examination of Mr. Rucker, who brought to Mr. Turner the bag containing the ammunition, re: contents of ATF form Mr. Rucker filled out with the assistance of Mr. Turner's attorney. There was significant danger the jury would confuse the issue of counsel's credibility with Mr. Turner's guilt.

Thursday, January 22, 2009

Prisoner Plaintiff Stated Cause of Action Based on Prison's Depriving Him of Hygiene Items

Whittington v. Ortiz, 2009 WL 74471 (1/13/09) (unpub'd) - The prisoner plaintiff had set forth a ground for relief by alleging that the prison authorities deprived him of hygiene items: soap, toothpaste, toothbrushes and razors and, thus, caused him physical problems. His lawsuits took up so much money to litigate, [making copies, etc.], that his prison account did not have enough money left to pay for the hygiene items. When he asked for the items the prison responded that he was spending too much on litigation or that, because he received wages, he was not entitled to free hygiene items.

Possessing Deadly Weapon in Prison is ACCA Violent Felony

U.S. v. Zuniga, 2009 WL 104304 (1/16/09) (Published) - The 10th expands the meaning of "purposeful, violent and aggressive" under the recent Supreme Court decision in Begay and, as a result, expand the kinds of offenses that are violent felonies under the Armed Career Criminal Act (ACCA), [and by extension "crimes of violence" under the Guidelines]. The 10th holds possession of a deadly weapon in prison is an ACCA violent felony.

(1) Following U.S. v. Romero, 122 F.3d 1334 (10th Cir. 1997), the 10th notes that, because a deadly weapon has no legitimate recreational uses in prison, the offense involves conduct that presents a serious potential risk of physical injury to another. Begay doesn't change that conclusion.

(2 ) Begay required that a non-enumerated offense must "typically involve purposeful, violent and aggressive conduct." The 10th found the offense in this case met all those criteria. (a) The offense conduct is purposeful. The offense can be committed knowingly, intentionally or recklessly. The 10th discounts the recklessly part because Begay refers to what the offense "typically" involves and "typically," the 10th surmises, the offense is committed knowingly or intentionally. It seems to me this "logic" skips an important part of the analysis. First, don't you have to undertake a modified categorical approach and find out if the relevant judicial documents indicate which mens rea is applicable? If you can't tell which one, aren't you supposed to assume it's reckless? That is precisely what the 10th decided in a case coincidentally titled U.S. v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008) in a § 2L1.2 "crime of violence" context. (b) The offense conduct is violent. What Begay meant by violent was the offense creates the "likelihood of violence." The offense indicates the defendant was "prepared to use violence." (c) The offense conduct is aggressive. To be aggressive the offense needs to be "offensive and forceful and characterized by initiating hostilities or attacks" or committed by one who is "inclined to behave in an actively hostile fashion." The latter phrase that broadens the meaning of "aggressive" enabled the 10th to include the offense in question as a violent felony. It also seems to open the violent felony door to all sorts of offenses.

Thursday, January 15, 2009

Evidentiary Hearing Ordered on Petitioner's Claim He Wasn't Allowed to Testify

US v. Duran-Salazar, 2009 WL 74476 (10th Cir. 1/13/2009) unpublished: A divided panel remands the habeas petitioner's case for an evidentiary hearing in the district court on his 2255 claim that he was denied effective assistance of counsel at his trial. The Tenth concludes that the district court abused its discretion when it denied a hearing on his claim, supported by sworn statements, that he was denied effective assistance when his counsel refused to allow him to testify on his own behalf at this trial. At his trial on drug conspiracy (backpacker case) charges, he wanted to testify that he did not have an agreement with the codefendants. His counsel told the jury in opening statements that Mr. Salazar would testify, but then rested without calling Mr. Salazar. The jury had a hard time reaching an agreement. The allegations, coupled with the jury's difficulty in reaching a decision, entitled Mr. Salazar to an evidentiary hearing. The dissent (Judge O'Brien) would have affirmed on the basis that Mr. Salazar's claim of no agreement was "wholly incredible" based on the record.

Dog Alert Sufficiently Reliable Despite Dog's Health Issues

US v. Bertram, 2009 WL 74477 (10th Cir. 1/13/2009) unpublished: Defendant's convictions for felon in possession of a firearm are affirmed. The guns were found after a dog alerted to the car during a traffic stop. Read this case if you have a dog alert issue.

Defendant contended there was no probable cause because the dog (named Taz) was unreliable and the officers knew it. The record showed that Taz had a degenerative health condition which resulted in his being put to sleep just a few months after the alert at issue. However, the magistrate judge had denied the motion to suppress based on the dog's record in the field and its certification. Interestingly, somehow the attorney managed to obtain disclosure of the dog's record of false alerts. Along the way, the court affirms that a dog with a success rate of 70% meets the probable cause standard.

The Tenth gives short shrift to Mr. Bertram's objection to the admission of certain records from the BOP, which he claimed included uncertified and therefor not self-authenticating records from Texas. The court says the admission was likely ok, but decides to rule on the basis that any error was harmless because defendant admitted he was a felon at the trial.

Tuesday, January 13, 2009

Reentry After Deportation is a Continuing Offense

US v. Villarreal-Ortiz, -- F.3d --, 2009 WL 57491 (10th Cir. 1/12/09) - after having been deported, Mr. Villarreal-Ortiz re-entered and was arrested on drug charges. He admitted being in the US w/o inspection. After he got probation on the drug charge, an immigration agent determined his true name and status as a prior deportee. COA holds that when Mr. Villarreal-Ortiz was sentenced for being a deported alien "found" in the US, he properly received an increase in criminal history points under USSG § 4A1.1(d) for committing his offense while on probation for another crime. He was still committing his offense of being "found" in the US after he was placed on probation. The crime of being "found" in the US is a continuing offense that continues after the defendant's re-entry to the US until the gov't knows or could have know the defendant's prior deportee status, his illegal presence in the US, and his whereabouts.

Monday, January 05, 2009

Team Effort

Happy New Year! This seems like a good time to point out that, although I manage this blog, the submissions are actually written by the whole team of wonderful and dedicated research and writing specialists in the District of New Mexico.

Despite Sparse Mitigation Efforts by Trial Counsel, Capital Habeas Petitioner's Claims Rejected

Smith v. Workman, ___ F.3d ___, No. 05-6206 (10th Cir. 2008)

Death affirmed in habeas case. The offense was the killing of a confederate who refused to give Petitioner drugs and money. The aggravating circumstances supporting death, after a mitigation trial that took up only 6 pages of transcript, was Petitioner’s two previous violent felony convictions and the probability of his continuing threat to society. The federal district court held an evidentiary hearing on Petitioner’s claim of ineffective assistance of counsel (IAC) at mitigation.

Issues on appeal and resolution by Court:

(1) No IAC for failure to raise Ake claim during mitigation because at time of P’s trial, Ake (entitling a Defendant to psychiatric expert) only applied when the state presented psychiatric evidence of future dangerousness, and had not been extended to require an expert when state put on non-psychiatric evidence of future dangerousness, as was done in Petitioner’s trial.

(2) No IAC by appellate counsel for failing to raise Ake claim for trial court’s failure to provide psychiatrist at guilt phase when requested by trial counsel, because record supported habeas court's determination that request was for competency issues only, not for trial (sanity) purposes; cannot therefore show appellate atty would have prevailed on this issue.

(3) No mitigation phase IAC. Though a wealth of information was never uncovered by counsel about Petitioner’s rotten childhood and poor mental functioning, it was not an objectively unreasonable defense decision not to pursue this because it could have supported state’s case that Petitioner was dangerous, and because the mentally deficient Petitioner did not point counsel in the direction of mitigating evidence (what a scary cop-out). Both fed district and COA say there was much more counsel could have done to uncover and present identified, very mitigating evidence and to humanize Petitioenr–why the failure to do this does not weigh as “objectively” unreasonable is a mystery).

(4) Claim of guilt phase Brady violation is procedurally barred.

Double-Counting in Reentry Cases Still OK

United States v. Algarate-Valencia, ___ F.3d ___, 2008 WL 5401415 (10th Cir. 2008)

After submitting a lengthy sentencing memo, defense counsel asked to speak at sentencing. The judge said “you have 30 seconds.” Counsel spoke, quickly. After the judge pronounced sentence and did not address the grounds Defendant raised for a variance, the government asked the judge to make findings on Defendant’s variance grounds. The judge had an interesting retort: “I’m not going to do that.”

Issue 1: cutting counsel short on allocution. Court: plain error because no objection to the limitation!!! Under plain error, no showing that the time limit affected D’s substantial rights–that there were more or different arguments to be made than what was on paper. Issue 2: not addressing the variance grounds. The court acknowledges this would have been futile given the judge’s retort, so harmless error (not plain error) review (shouldn’t the same futility analysis have applied to the 30 second limit, in that the judge’s attitude permeated the entire proceeding?). On the merits, the COA rules that while less than ideal, what the judge said was adequate. Apparently nothing equals something, and one wonders why bother with procedural objections.

Given all this, the third issue: substantive reasonableness challenge of the low end of the guideline. The Court reaffirms that it is not improper double counting to assign criminal history points for the same prior that aggravates the reentry GL under 2L1.2.

Wife's Suicide Supports Felon-in-Possession Enhancement

United States v. Montgomery, ___ F.3d ___, 2008 WL 5401410 (10th Cir. 2008)
Upward departure for death under USSG Sec. 5K2.1 is not limited to homicide deaths and can apply as a matter of law to a resulting suicide–in this case, D’s wife committed suicide with a gun he illegally possessed as a felon. For 5K2.1 to apply, the death must be a reasonably foreseeable result of the crime of conviction. In this case, there was evidence that D knew of his wife’s depression, and that his escalating emotional and physical abuse of her exacerbated her depressed mental state. There need not be proof that he actually knew his wife would commit suicide.

Fla. Agg Battery Conviction Not Categorically a Crime of Violence

United States v. Barraza-Ramos, ___ F.3d ___, 2008 WL 5401417 (10th Cir. 2008)
The Court happily determines, in at least the context of this case, “or” does not mean “and.”

Defendant’s Florida conviction for felony aggravated battery was not categorically a crime of violence and could not support the 16 level upward adjustment under USSG 2L1.2 on a reentry conviction. Because agg battery is not one of the enumerated COVs in the guideline, the Court looked to whether it had the element of use, attempted use, or threatened use of physical force against the person of another. The subsection of the Fla. statute to which Defendant pleaded guilty applied to battery of a pregnant person, elevating the offense of simple battery to a felony and requiring a look at simple battery. Fla. simple battery is broad, and can be committed in a number of ways, including touching the person of another against that person’s will. Employing the modified categorical approach, the COA determined that Defendant’s charging document listed “touching or striking” as the manner of battery. The charging document therefore failed to show that force was involved in Defendant’s conviction (it did not show which of the two prongs he was convicted of). The COA referred to the recent Hays opinion in which it held that rude touching does not amount to the force needed to constitute a categorical crime of violence.

NOTE: The 10th got to dodge addressing a wacky and patently unfair upward variance–from 57-71 months (and correctly from 24-30 months)–to 192 months in this case where the Defendant alien’s only other past criminal problems involved DWIs. In other words, in Kansas, alien + DWI = mega time in prison.

Unpublished Decisions

U.S. v. Helton, 2008 WL 5206276 (12/15/08) (unpub'd) - Video of a minor constituted a lascivious exhibition of the minor's pubic area, even though the minor's pubic area was covered. A surreptitious video set up in a bathroom focusing on an 11-year-old girl's pubic area covered by opaque underpants was child pornography. The 10th reached its conclusion that the video was lascivious based on six factors, including whether the visual depiction was intended to elicit a sexual response---a matter viewed from the perspective of the defendant, who had "an extreme interest in visual depictions of female underpants," as evidenced by possession of "Panty Play" magazines and videos entitled "Real Hidden Panties 6, 7 & 8". The 10th recognized the defendant's conduct was not as egregious as others violating 18 U.S.C. § 2251(a). The 25-year mandatory minimum sentence the defendant received may be "more than condign," the 10th says, i.e., more than deserved. But it was up to the government's discretion to prosecute the case as it did.

U.S. v. Gerhart, 2008 WL 5220675 (12/16/08) (unpub'd) - Although the § 2255 movant loses here, the 10th does note a 10th holding on direct appeal that a plea was knowing and voluntary based on a review of the record did not preclude a plea involuntariness claim on collateral review based on extrinsic evidence.

U.S. v. Williams, 2008 WL 5220678 (12/16/08) (unpub'd) - The prosecutor gave a legitimate race-neutral explanation for her peremptory challenge of an African-American juror on the ground that she strikes all criminal defense lawyers.

Graham v. Addison, 2008 WL 5272814 (12/19/08) (unpub'd) - The state trial court erred when it placed a blackboard between the defendant and the children he was alleged to have molested without making a particularized finding that the defendant's presence would traumatize each child. But the 10th suggested it was not ineffective assistance to fail to object to that procedure and held, in any event, the petitioner could not prove the outcome of the trial would have been different without the blackboard.

Ross v. Parker, 2008 WL 5272796 (12/19/08) (unpub'd) - The petitioner could not show prejudice resulting from the fact that one of the appellate judges who affirmed his conviction and sentence was being investigated by the Oklahoma Attorney General at the time of the decision. Other judges on the panel also ruled against the petitioner.

U.S. v. Martinez, 2008 WL 5220669 (12/16/2008) (unpub'd) - The prisoner could not establish equitable tolling of the one-year limitation for filing his § 2255 motion, even though he was placed in controlled housing for nearly two months near the time of the deadline, in part because he did not allege he requested from the prison materials he did not have access to during his restrictive placement.

General Request for Low Sentence Fails to Preserve Specific Issue

U.S. v. Herrera-Gonzalez, 20008 WL 5328448 (12/22/08) (unpub'd) - An issue-preservation word to the wise. Counsel had not preserved the issue that the d.ct. should have imposed a greater variance than it did to a level below what the defendant would have received had the defendant entered a Fast-Track plea, because counsel had not explicitly requested a sentence that low. Counsel only generally asked for a sentence lower than the guideline range.

Guidelines Mandatory in Sec. 3582(c)(2) Context

U.S. v. Pedraza, 2008 WL 5274446 (12/22/08) (Published) - The 10th refused to permit the guidelines to be considered advisory in the defendant's § 3582(c)(2) proceedings. The 10th applied its recent decision in Rhodes that Booker did not apply to those proceedings. It also held that it didn't matter that different guidelines applied to Mr. Pedraza than applied to Mr. Rhodes. Mr. Rhodes was governed by later § 1B1.10 guidelines that explicitly prohibited a sentence below the amended guideline range unless a departure or variance had been originally granted. Mr. Pedraza's guidelines were ambiguous on the point. But a majority, [Judges Henry and McConnell] read the older guidelines as suggesting the judge's discretion was limited to substituting the new guideline range for the old one. Judge McKay dissented, saying he disagreed with Rhodes' creation of a circuit split and, in any event, felt the old § 1B1.10 was ambiguous and the rule of lenity required an interpretation that permitted a variance below the amended guideline range.

Tenth Limits Meaning of "Forcible Sex Offense" in Guidelines

U.S. v. Dennis, 2008 WL 5274098 (12/22/08) (Published) - An excellent guideline "crime of violence" decision. The taking of indecent liberties with a minor in Wyoming is not a "forcible sex offense" and does not present a serious potential risk of physical injury to another under § 4B1.2. The Wyoming statute covered activities that are otherwise permissible between consenting adults when one of the parties is under 18. No force was required so it was not a forcible sex offense. [Note the where-the-consent-is-invalid amendment to "forcible sex offenses" in the § 2L1.2 definition of "crime of violence" might make Dennis unhelpful in the § 2L1.2 context]. The statute did not "necessarily" involve conduct that presented the same kind of risk as the other enumerated offenses, e.g. burglary. The 10th found the physical injury risk was not high enough, pointing to the application of the statute in case law to consensual sex with a 16 year-old, providing pornographic magazines, surreptitious videotaping. The 10th thought it significant there was no age difference requirement [i.e., it covered consensual sexual intercourse between a near 18 year-old and a just-turned 18 year-old]. Also, applying Begay, the 10th felt the dangers of pregnancy and sexually transmitted disease did not constitute the requisite similar kind of risk. The 10th also rejected the government's argument for "categorical plus" analysis by virtue of the reference in the "crime of violence" definition to conduct "expressly charged." That reference did not allow consideration of the defendant's actual conduct. It is the elements that matter.