Insufficient Evidence of Money Laundering, But Wire Fraud Convictions Affirmed

US v. Gayle Caldwell, -- F.3d --, 2009 WL 806579 (10th Cir. 3/30/09) - appeal of wire fraud and money laundering convictions after trial with husband and five other co-Ds. While there was ample evidence of intent to defraud to support wire fraud conviction, the money laundering conviction is reversed due to insufficient evidence that the transaction in question was designed to conceal. 404(b) evidence of two uncharged transactions was properly admitted to show motive and intent and a common scheme and design. Joinder with co-Ds was proper and there was no abuse of discretion in denial of severance.

US v. Charles Caldwell, -- F.3d --, 2009 WL 806578 (10th Cir. 3/30/09) - there was sufficient evidence to support Mr. Caldwell's convictions of wire fraud. As in Ms. Caldwell's case, the 404(b) evidence was properly admitted to show motive and intent and a common scheme or design; joinder was proper and severance was properly denied.

Multitudinous Brady/Giglio/Napue Violations Basis for Habeas Relief for Two Capital Defendants

Douglas v. Workman, No. 01-6094 and Powell v. Workman, No. 06-6093, 3/26/09 - Great (conditional) habeas win in these companion Oklahoma death penalty cases. Smith and a young lady were walking along late one night after a party, at which Smith had drunk a lot and smoked pot. A car drove past them, turned around, and its occupants opened fire, killing the girl and wounding Smith. Smith gave several conflicting descriptions of the shooters and their car. He settled on Douglas and Powell as the killers. They were convicted after separate trials held almost two years apart and each was sentenced to death. Smith, as the only eyewitness, was the “linchpin” of the state’s case in each trial. In both trials, Miller, the prosecutor, extensively vouched for Smith’s credibility and emphasized that Smith was getting nothing in exchange for his truthful testimony.

To make a long story short, it eventually came out that Smith had told Miller early on that he could not identify the occupants of the car, but would identify Douglas and Powell in exchange for help in a pending drug case, which he got after Douglas’s trial (the first one) was over. Smith later leveraged the fact that Miller knew his testimony was false but presented it anyway to get Miller to intervene every time he got in trouble with the law again, which happened numerous times before Powell’s trial. Miller disclosed none of this and did everything he could to prevent its disclosure.

The blatant and intentional Napue/Brady/Giglio violations warranted habeas relief. The relief was conditional, however, because new trials could be had, free of those violations. So Douglas and Powell are not out of the woods yet.

There is an extensive discussion of the standards of review in § 2254 cases, and a very interesting one about second or successive petitions where, as in Douglas’s case, the newly-discovered evidence comes to light while the original habeas petition is pending, and petitioner wants to raise that in connection with the original petition.

Tenth Emphasizes Counsel's Duties to the Court

US v. Mendez-Zavala, No. 08-2178, 3/26/09 (unpublished) - Defendant pled guilty to conspiracy to possess heroin with intent to distribute. He got a 2-level increase at sentencing for possessing a gun during a purchase of heroin from an undercover cop, based on the testimony at sentencing of the cop. Defendant challenged the 2-level enhancement on appeal based on a comment the district court had made during sentencing of a codefendant, who got a 2-level enhancement for supervisory role, in which the court was explaining why co-d got a higher sentence than defendant. Defendant tried to twist that comment into an argument that his own 2-point bump was really based on a role adjustment, of which he got no prior notice. That was emphatically not the case. Not only was the sentence affirmed, but the 10th took “this moment to stress that counsel has a duty of candor to the court” and that “[f]actual contentions on appeal should be supported in the record.” It characterized the argument as bordering on the frivolous. Polite, indeed.

Another GL Sentence Affirmed

US v. Gallegos-Castillo, No, 08-2090, 3/26/09 - Bottom of the guideline range sentence in reentry case affirmed. No plain procedural error in using prior violent felony conviction in both offense level and criminal history calculations, and court was without jurisdiction to review decision not to depart downward based on overrrepresented criminal history. Sentence was also substantively reasonable because nothing raised by defendant rebutted the presumption of reasonableness, so district court did not abuse its discretion in imposing it.

Tenth Reverses New Trial Grant Despite Jurors' Racist Comments

US v. Benally, -- F.3d --, 2009 WL 73893 (10th Cir. 3/23/09) - Rehearing en banc denied of panel decision reversing Utah district court grant of Mr. Benally's new trial motion. There were 4 votes for rehearing - Briscoe, Lucero, Henry, and Murphy. Briscoe writes a dissent joined by Lucero and there is a separate dissent by Murphy and Lucero. A juror came forward the day after the verdict was announced and said that two jurors made racist statements about Native Americans during deliberations. The foreman told the other jurors he used to live near an Indian Reservation and that when Indians get alcohol, they all get drunk and then get violent. Another juror chimed in in agreement. There was jury discussion about the need to send a message back to the reservation. The district court found that the two jurors had lied during voir dire in failing to reveal past experiences with Native Americans and their preconceptions that Native Americans get drunk and violent. The panel decided Mr. Benally's use of juror testimony to challenge the validity of the verdict violated Fed. R. Evid. 606(b). Briscoe views Benally's claim as inquiring into the legitimacy of pre-trial procedures and the constitutionality of the overall proceedings. She writes, and Murphy and Lucero agree, that a juror's statement that denigrates the defendant's race should fall within the "extraneous prejudicial information" exception of Rule 606(b). The panel decision conflicts with the 9th and DC Circuits' interpretation of Rule 606(b).

Feeding at the Public Trough

US v. Baldridge, 2009 WL 692107, No. 07-5121 (10th Cir. 3/18/09) (published): The Tenth affirms the convictions of a local (former) politician for conspiracy, fraud and misapplication of funds by a local government official, mail fraud, money laundering and corrupt persuasion of a person to obstruct a federal investigation. Basically, as a county commissioner, Baldridge schemed to file false claims with the county for payment. In one case, he got a county employee (Bentz) to do road work and then arranged to have payment made to a friend of the employee's. In another incident, he hired the husband (Brian Rash) of a county employee (Cindy Rash) to do contract labor at his sister's house and paid with county funds. The county employee prepared the invoices arranging payment to her husband. Some of this money was given back to Baldridge. In another incident, Baldridge arranged for money to be paid to a friend, ostensibly for bridge repair, but there was no evidence the work was done. Again, there was a kickback to Baldridge. In another case, Baldridge arranged to have a friend's driveway paved with County materials. Once the investigation started, there were efforts to lie and cover up.

Defendant complained on appeal that the prosecutor tried to insinuate that he and a friend had a homosexual relationship. Because there was no objection to the questions (Q: "Would you say you have a very, very close relationship?" A: "I love him like a brother." Q: "Do you love the Defendant...?") except on relevance grounds (which the court sustained), the Tenth reviewed for plain error. The court found no error because it is appropriate to question a witness about possible bias.

Baldridge argued there was insufficient evidence of a single conspiracy, but rather the evidence showed three or four separate conspiracies. The Court apparently agreed that it appeared not all the conspiracies were interrelated; however, the evidence to support the conspiracy charge was sufficient because Cindy Rash prepared false documents with respect to the false claims and at the very least she knew that the payments for her husband were for work at Baldridge's sister's house, for which he was entitled to receive county money. Those payments totaled more than $6000, and therefore met the $5000 jurisdictional threshhold.

The defendant also contended that the evidence was insufficient to support his conviction under 18 USC 666(a)(1)(A), which prohibits misappropriation of $5000 or more if the local government "in any one year period" received federal benefits in excess of $10000. The Tenth held that the relevant one year period does not have to be fiscal or calendar, and the fact the county received more than $72000 in federal benefits on Sept. 27, 2004, provided a jurisdictional basis for the defendant to be held liable for any fraud between that date and September 26, 2005. This time period included the dates on which all the warrants alleged in this charge were issued.

The Tenth rejected the argument that the payments to the county employees could be deemed legitimate under the safe harbor provision of 666(c). However, those employees weren't merely paid for more hours than they actually worked, they were paid for work for which they could not have been paid by the county.

Mailing the fraudulent warrants in the US mail was sufficient to support the mail fraud counts. There was sufficient evidence to support the money laundering counts, in that several transactions were designed to hide the ultimate recipient of the funds.

The Tenth also discussed the meannig of "corruptly persuaded," and concluded that the defendant's actions here met the standard that they be "done voluntarily and intentionally to bring about false or misleading testimony or to prevent testimony with the hope or expectation of some benefit to the defendant." Direct threats or requests to lie are not required.

Okla. Battery on Peace Officer Categorically an ACCA Predicate

US v. Williams, 2009 WL 692323, 3/18/09 - Prior conviction for battery on a peace officer, a felony under Oklahoma law, counted as a crime of violence under ACCA. Defendant tried to argue that this was really a misdemeanor that was aggravated to felony status only because of the victim’s status. Wrong. First, the 10th had already held that a violation of this particular statute was categorically a crime of violence. Defendant tried to get around that by arguing that the prior opinion “because the analysis lacks sufficient specificity.” Wrong again. Battery on a cop is categorically a crime of violence under the residual clause of USSG 4B1.2(a)(2) because the statute requires the intentional use of force or violence, is similar in kind to the enumerated offenses in that it ordinarily involves purposeful, violent and aggressive conduct, and presents a similar risk as the enumerated offenses because hitting a cop creates a risk of a serious escalation in violence. Can't argue with that point.

This decision should not discourage people to continue to object to felony batteries being used as predicate violent felonies under the ACCA or "crimes of violence" under § 4B1.2. The S. Ct. will be deciding next term whether a Florida battery is a violent felony.

Fishing Expedition

US v. Marquez-Diaz, 2009 WL 693337, 3/18/09 - Denial of suppression motion affirmed. Cop followed pickup truck late one evening just south of Carrizozo NM and pulls it over because the license plate light is misaligned, creating a glare that prevented cop from reading the plate. Uh-huh. Fishing gear and a tent are in the bed. While waiting for license/registration and warrants checks to come back, cop questioned driver about his travel plans and driver, who is from El Paso, TX, said he decided on the spur of the moment to visit Carrizozo and planned to stay in a hotel. He just wanted to look around for the weekend. Cop then got the all-clear, but kept talking to driver, who said he planned to go fishing, and began asking cop about good places to stay and eat Driver was “just a little bit too nervous.” Cop then talked to passenger, whose story was inconsistent with driver’s on almost every point. Cop eventually got consent to search from both and found drugs. Held - initial stop valid and stop was not unreasonably extended because cop had reasonable suspicion of illegal activity - “Cascading events serially and incrementally added to [cop’s] suspicion of crime underfoot and each event reasonably justified the delay occasioned by his further inquiry.”

ACCA Sentence Reversed Based on Chambers

US v. Turner, 2009 WL 693343, 3/18/09 - ACCA sentence vacated and remanded for resentencing in light of Chambers, where one of defendant’s convictions was for escape- failure to report.

Bad Gamble

US v. Island, No. 08-6111, 3/19/09 (unpublished)- Sufficient evidence supported convictions for misdemeanor embezzlements and felony conspiracy to embezzle. Defendant ran day-today operations of tribal gaming account, and wrote checks from the account at the direction of her boss, who was chairman of the 8-member business committee. Defendant, boss and another committee member took trips to Vegas and Albuquerque. She got wire transfers during these trips in the total amount of $15,000. Jury could reasonably find that there was a meeting of the minds among all three to embezzle tribal funds, and aggregating the misdemeanor amounts of each transfer into a felony amount for conspiracy was proper because obtaining the total amount was the objective of the conspiracy, which is a separate crime.

Electronic Case Filing

According to an announcement at the Tenth Circuit's website, the Court will begin electronic case filing (ECF) on a voluntary basis on March 31, 2009. The Court will have ECF open for testing prior to that date, but pleadings will not be accepted via ECF until that date. Here are links to the ECF User's Manual and the ECF Frequently Asked Questions (FAQ).

Circuit Snippets

The Supreme Court broadly interpreted the definition of "misdemeanor offense of domestic violence," as used in 18 USC 922(g)(9) (prohibiting firearms possession by persons with such convictions) as requiring the government to prove beyond a reasonable doubt that the victim of the prior offense was in a domestic relationship with the offender, but the prior statute of conviction did not need to include the domestic relationship as an element. US v. Hayes, No. 07-608 (S.Ct. 2/24/09)

Although the 9th Circuit said it would have found that a defendant was deprived of counsel when the trial court failed to consult with defense counsel before directing jurors to refer back to the original jury instructions, it declined to order habeas relief for a state petitioner because the state courts did not unreasonably apply federal law when they concluded prejudice had to be shown. Musladin v. Lamarque, No. 03-16653 (9th cir. 2/12/09)

Defendant goes on a bank robbing spree. In one, a police officer is shot. The defendant is charged in federal court with numerous offenses, including two that are death-penalty eligible: an attempted robbery that resulted in death, and use of a firearm to commit an attempted armed bank robbery and murder. The jury found on a special verdict form the same two aggravating factors and the same 47 mitigating factors as to each offense, yet returned a verdict of death only as to the gun count. Relying on US v. Johnson, 223 F.3d 665 (7th Cir. 2000), the trial court concluded that different verdicts based on weighing the exact same aggravating and mitigating factors indicated the verdicts were arbitrary, so it ordered a new sentencing hearing on the gun count. The Sixth Circuit concluded that the verdicts were not inconsistent, and reached this conclusion by tallying up how many jurors found each mitigating factor on each of the special verdict forms. More jurors found more mitigating factors on the robbery count (for a total of 338 mitigating factor findings v. 304 mitigating factor findings on the gun count). Voila! The verdicts are actually consistent and rational (even though it was the same defendant, the same attempted robbery, and the same victim). As a preamble, the Court had to find that it had jurisdiction over the government's interlocutory appeal under 18 USC 3731 and, obviously, concluded that it did. US v. Lawrence, No. 06-4105 (6th Cir. 2/11/09)

The 9th Circuit held that it will apply an abuse of discretion standard of review -- rather than plain error -- to a party's contention that a sentence is substantively unreasonable, even if the issue was not raised in the district court . US v. Autery, No. 07-30424 (9th Cir. 2/13/09)

Hubby escapes from prison. Defendant wifey gives gun to hubby. Hubby shoots at cop. Defendant convicted of illegally transferring a firearm. USSG 2K2.1(c)(1) cross-references to 2X1.1, which governs attempts, when the gun was transferred with the knowledge of intent it would be used in connection with another offense. So the district court applies the attempted murder guideline. The Fifth Circuit rejected the government's argument that the gun facilitated the other offense. It remanded for resentencing, because the judge had to find that the defendant transferred the gun "with knowledge or intent" that it would be used to commit another offense. US v. Johnston, No. 08-10120 (5th Cir. 2/10/09)

In a case of first impression, the Third Circuit had to decide which of two guidelines applied to the defendant's offense of illegally retaining classified national defense documents in violation of 18 USC 793(e). The trial court picked USSG 2M3.2, the option with the higher offense level that applies when the defendant knew or should have known the documents could be used to threaten national security or aid a foreign power. Defendant admitted to having the proscribed mens rea. However, the Third Circuit focused on conduct, and decided that USSG 2M3.3 was more appropriate. Section 2M3.2 applied to active conduct, like communication, while 3M3.3 applied to more passive conduct, like simple retention. US v. Aquino, No. 07-3202 (3d Cir. 2/6/09)

Well, apparently, if the drug-sniffing dog arrives before the traffic stop is concluded, then it's ok for the cop to just continue with the narcotics investigation. So, there was no fourth amendment violation when the trooper ordered the defendant to step out of his car during the traffic stop for the sole purpose of allowing the dog to sniff the car. Defendant was driving a rental car and was not an authorized driver. The court rejected the defendant's argument that the officer did not diligently pursue the purpose of the stop (speeding), instead emphasizing that the dog arrived while the trooper was still conducting the background check and the sniffing occurred while the warning ticket was being written. US v. Bell, No. 06-4413 (6th Cir. 1/20/09)

"Honest Services" Aspect of Federal Mail Fraud Statute Needs Clarity, But Won't Get It

A Supreme Court note:

Sorich v. U.S., 2009 WL 425807 (2/23/09) - Justice Scalia dissents from a denial of a petition for certiorari. In his opinion, he lays out how the "honest services" language of the mail fraud statute has been interpreted differently by the circuits with no coherent limiting principle. Some circuits' interpretation would allow a conviction for a salaried employee phoning in sick to go to a ball game [Ouch], the justice says. Some require that a state law be violated. Others require that there be private gain. The justice laments that the language is so broad it does not give fair notice under the Due Process Clause about what conduct it covers. He notes there may be mail fraud convictees who have acted improperly, but admonishes: "bad men, like good men, are entitled to be tried and sentenced in accordance with the law." Amen.

Fetish Evidence Not Fundamentally Unfair

U.S. v. Jones, 2009 WL 485048 (2/27/09) (unpub'd) - It did not render the trial fundamentally unfair to present evidence of the defendant's urine fetish to prove the defendant entered a nursing home and sexually assaulted one resident and pulled up the bedsheet and looked at another's diaper that she was wearing.

"Rumor" Helps Support Pat-Down Search

U.S. v. Lazos, 2009 WL 449168 (2/24/09) (unpub'd) - A "rumor" among officers that the defendant was transporting meth from Tucson, AZ, to Lordsburg, NM, properly played a role in the totality of circumstances establishing the need to pat-down the defendant after he was stopped traveling in between those two cities. That the officer testifying about the rumor had a child with the woman the defendant was traveling with [and perhaps had some animus towards the couple] could affect the officer's credibility, but the district court found him credible. The 10th was "troubled" by the officer's testimony that he talked to the defendant to "build more suspicion." But that only went to the officer's subjective intent, which is irrelevant in the make-believe world of reasonable suspicion.

Failure to Return "Escape" Not A Career Offender Predicate

U.S. v. Pappan, 07-8020 (2/27/09) (unpub'd) - Following the Supreme Court's decision in Chambers, which was an ACCA statutory case, the 10th holds a failure-to-return escape is not a "crime of violence" for career offender guideline purposes. The 10th refuses to remand the case to a different judge, despite the judge's problematic reference to the defendant's ethnic heritage. The district court noted that the defendant's drug distribution had enabled non-natives to have access to the defendant's tribal community and then said: "that has to be taken into account and that's why a sentence within the guideline range is appropriate." The 10th concludes the judge was focusing on the defendant's conduct, not his heritage. So, that "fleeting" reference to ethnic heritage was not a reason to disqualify the judge on remand.

Bad Result for Crack Defendants Who Previously Received Booker Variances

U.S. v. Brown, 2009 WL 486775 (2/27/09) (Published)

The 10th interprets USSG § 1B1.10(b)(2) to mean generally it would not be appropriate to reduce a sentence based on the crack guideline reduction amendment where the district court originally gave a downward variance under Booker and 18 USC § 3553(a). Even the Commission doesn't agree with that. Only when the district court has not considered the guideline range, [which is never] should the defendant not get a further reduction, the Commission has said. In the usual case, the pre-crack amendment range would have affected the district court's sentence. So lowering the range should lead to a further sentence reduction. Yet, in upholding the denial of defendant's request for appointed counsel, the 10th calls the defendant's reduction request "clearly" contrary to the Commission's policy statement. It was no such thing.

The circumstances of this case were not so compelling for the defendant, however. The district court reduced the defendant's offense level four levels because of the unfair crack-powder ratio. So, while affirming the failure to reduce the sentence in this case might make sense, the 10th has created bad case law for others. The 10th also troublingly says § 3553(a) played no role in the district court's decision not to resentence. The statute seems to very clearly require consultation with § 3553(a) in making that decision.

Crack, Gun Convictions Affirmed; Evidentiary, Alleged Prosecutorial Misconduct Claims Rejected

United States v. Rogers, ___ F.3d ___, 2009 WL 514085 (10th Cir. 2009)

Defendant was convicted of possession of crack with intent and conspiracy, possession of firearm during the course of a drug offense, and felon in possession of a firearm.

(1) encounter between Defendant and cop outside hotel suite was consensual and not a seizure and therefore no 4th Amendment violation: it lasted only seconds, cop was alone, no threats by way of words, weapon use or behavior, cop and Defendant had encounters before at same hotel without incident, cop asked only if he could talk to Defendant.

(2) no abuse of discretion for trial court to not admit hotel log that showed a “Ricky Smith” checked out of hotel the day after Defendant was arrested–district court found that under the business records exception it was unreliable (court adopted govt argument it was a different log from that given to investigators and tendered at the suppression hearing). It was minimally probative because jury heard that a “Ricky Smith” checked out the day after Defendant was arrested.

(3) Sufficient evidence of conspiracy: Defendant’s cell phone in room with drugs, Defendant dropped something behind door inside room when cop came and it was packaged- for-sale crack, room was a stash room for sale of crack; of possession of guns during a drug crime: though loaded guns were in a night stand by bed in which co-Defendant was laying. Too boot, all evidence that showed conspiracy showed Defendant’s connection to gun, says Court(plus expert testimony that guns used in connection with stash places!!!!). Lame.

(4) Not plain error for government to say cop came into the hotel room with a cross on his belt ready to go into the belly of the beast–it was a single, isolated remark and general cautionary instructions were given–Defendant cannot show substantial rights affected. Prosecutor’s closing that there was no defense under the law for what Defendant did was not plain error–though Defendant argued it shifted the burden of proof, it was just argument that Defendant’s defense did not hold up. Prosecutor’s closing remarks appealing to community conscience to convict were harmless–case against Defendant was strong. (The prosecutor was allowed to get away with very bad behavior in this one).

Quoth the Raven: Bounty Hunters Evermore

United States v. Poe, ___ F.3d ___, 2009 WL 514069 (10th Cir. 2009)

(1)Although Defendant had standing and an expectation of privacy in the home where he was a social guest, even though he did not stay overnight, bounty hunters were not state actors for 4th Amendment purposes when they acted without assistance of law enforcement in conducting a search in pursuit of Defendant, a bail jumper. The government did not know of or acquiesce in the bounty hunters’ entry and search of the home, and the fact that it regulates the bail industry does not establish knowledge. Also, bounty hunters were furthering their own commercial ends, not fulfilling a law enforcement purpose.

(2) Sufficient evidence that Defendant constructively possessed firearm in jointly occupied home–his statement that the gun was his was sufficiently corroborated. He said how he acquired it, and it was found next to drugs he admitted using. Sufficient evidence Defendant intended to distribute drugs based on quantity and baggies. Sufficient evidence of firearm in furtherance of drug offense based on all of the above.

(3) No plain error in sentence of ten years supervised release. It was within the statutory range for his conviction, and Court declined to engage in a determination of whether the guideline calculation was wrong.

Listserve for Tenth Circuit Appellate Attorneys Representing Indigent Defendants

According to a notice from the Tenth Circuit Court of Appeals, Tenth Circuit appellate CJA panel attorneys Antony Noble and Scott Davidson will co-moderate a new discussion listserv facilitating the exchange of ideas between attorneys representing indigent criminal appellants before the 10th Circuit Court of Appeals.

If you're unfamiliar with the term 'listserv,' this is how it works: You send to the listserv an e-mail posting a question or comment and your message is redistributed to other members of the listserv (who can reply in the same way). E-mails received from the listserv are identified in the subject line -- in this
instance: [10th Circuit CJA Listserv].

Membership in the new listserv is private, by invitation only and restricted to CJA/FPD/Retained defense attorneys practicing before the 10th Circuit that are not affiliated with a prosecutorial agency or court. The 10th Circuit will not be a member of the listserv and does not endorse any comments made thereon.

If you are interested in joining the discussion, and meet the restriction requirement, send an e-mail to co-moderator Antony Noble of The Noble Law Firm, LLC at antony@noble-law.com. Be sure to include in your e-mail your full address block with name, mailing and e-mail addresses and telephone number. You will then receive a membership invitation and instructions on how to accept the invitation. Once you are a member of the listserv, to post a message to your fellow attorneys, send an e-mail with your comment or question to CJA-10th-Circuit@googlegroups.com. Your e-mail will then be redistributed to all members of the 10th Circuit CJA Listserv. To reply to a listserv e-mail, simply use your "Reply" button. If you decide that you no longer want to receive messages from the listserv, send an e-mail to CJA-10th-Circuit+unsubscribe@googlegroups.com and your membership e-mails will stop.

Scott Davidson, of Scott M. Davidson, Ph.D., Esq., LLC, is the other co-moderator of this listserv. Both Mr. Noble and Mr. Davidson specialize in criminal appellate practice and both are members of the Tenth Circuit's Appellate CJA Attorney panel. For additional information, Scott Davidson can be contacted at scott@smdappellatelaw.com and Antony Noble can be contacted at antony@noble-law.com.