Friday, May 29, 2009

Circuit Snippets

Applying the gross disproportionality test of Solem v. Helm and Harmelin v. Michigan, the California Court of Appeal, Fourth District, held that a sentence of LWOP for a 14-year-old convicted of "no-injury" kidnapping violated both the 8th Amendment and the comparable provision of the California constitution. In re Nunez, No. G040377 (Cal. Ct. App. 4th Dist. 4/30/09)

The en banc Sixth Circuit reversed an earlier panel ruling that had granted habeas relief based on the petitioner's counsel's failure to raise an Apprendi challenge to the Federal Sentencing Guidelines. The en banc court held that, even if that were true, the defendant in this case could not establish prejudice because the Sixth Circuit had repeatedly, pre-Booker, rejected such arguments. Nichols v. US, No. 05-6452 (6th Cir. 4/29/09) en banc, on rehearing 501 F.3d 542

FRE 608 and 609, which allow impeachment of witnesses with prior bad acts and convicitions, do not allow a party to cross-examine a witness about the details of prior bad acts for which the witness was convicted, the 9th Circuit held. Defendant was on trial based on charges arising out of a tussle with a corrections officer. His version and the officer's version were, of course, quite different. It was reversible error for the district court to allow the government to cross-examine the defendant about the details of his prior bank fraud conviction to show that he had "lied to the bank." US v. Osazuwa, No. 08-50244 (9th Cir. 5/7/09)

Defendant had locked his live-in girlfriend out of their shared home in an effort to keep her from leaving him. She told the cops. After she proved she lived there, they helped her enter through a window to get her luggage. In the process, she showed the officers where the defendant kept a gun he was forbidden to possess. The Second Circuit held that the defendant's fourth amendment rights were not violated because the officers' entry was pursuant to the girlfriend's consent. US v. McGee, No. 07-4509-cr (2d Cir. 4/24/09)

924(c) Conviction Based on Gun Under Pillow in Room With Pot Affirmed

US v. Garza, No. 08-5040, 5/28/09 (published)- Conviction for possession of a firearm in furtherance of a drug-trafficking crime affirmed. No abuse of discretion in admitting cop’s expert testimony about how gun, found under a pillow in defendant’s bedroom along with pot and loaded with hollow-point bullets, related to defendant’s drug trafficking; no plain error in admission of this testimony, to the extent that it might have constituted an opinion as to defendant’s intent, because such error, if any, did not seriously affect the fairness, integrity, or public reputation of judicial proceedings; and evidence was sufficient to support conviction.

Sheriff Who Acted Based on Overbroad Warrant Denied Qualified Immunity in Civil Rights Case

Cassidy v. Goering, No. 07-1092, 5/28/09 (published) - Denial of qualified immunity to defendant sheriff who supervised search pursuant to invalid warrant affirmed by divided court. The opinions are great primers on the severability concept.

Plaintiff farmer who allowed another farmer to store grain at plaintiff’s farm got into an altercation with the other farmer over failure to pay for the storage. Both farmers call the cops. Other farmer tells cops that plaintiff was growing pot on the farm, so they got a warrant that authorized search related to that offense, as well as any evidence of any other crime that might have been committed in any jurisdiction. Cops trashed the place, top to bottom. Judge in criminal case suppressed all evidence seized because the warrant was overbroad, so criminal charges were dismissed.

Plaintiff sued. District court denied qualified immunity, case proceeded to trial, and plaintiff won, but new trial was granted because the amount of damages awarded was way too small. Sheriff renewed his pretrial motion to dismiss based on qualified immunity, which was again denied, so sheriff appealed. The 10th affirmed because, even assuming the criminal law concept of severability applies in civil rights cases, it could not save this facially overbroad warrant, about which the law was clearly established. Judge McConnell dissented, based on his view that severability did apply.

Late Restitution Order Still Valid; $250/month Not Unreasonable

US v. Dolan, No. 08-2104, 5/27/09 (published)- Restitution order entered more than 90 days after sentencing, which ordered defendant to pay $250/month against total restitution of over $100,000, affirmed.

Defendant severely beat a hitchhiker on the Mescalero Reservation in New Mexico and was convicted of assault resulting in serious bodily injury. This triggered the Mandatory Victim Restitution Act. The total amount of restitution had not been determined at the time of sentencing, so this triggered the requirement of the Mandatory Victim Restitution Act that the amount be determined within 90 days of sentencing. The amount was determined within that time, but for some reason the district court did not conduct a hearing on the matter until four months later. Defendant moved to dismiss, arguing the court lacked jurisdiction to enter an order, which the district court denied.

The COA also rejected the argument. The time limit is a claim-processing rule designed to protect victims by making sure they get restitution timely and to prevent defendants from dissipating their assets, not a jurisdictional bar that would reward defendants for governmental negligence by relieving them of their duty to pay restitution.

Defendant also contended that the $250 monthly payment was an unreasonable amount. The Tenth determined the amount was reasonable; even though defendant may have difficulty paying it, there was evidence suggesting it was not impossible. Even if it later proves to be, he can always ask the district court to amend the plan.

Fraud Victims Did Not Include Persons Who Were Fully Reimbursed

US v. Orr, No. 08-7070, 5/27/09 (unpublished)- Sentence in credit card fraud case vacated and remanded because the number of victims, upon which a two-level enhancement was based, should not have included individuals who were fully reimbursed by their banks, and also because government failed to prove that loss amount was properly calculated.

Claim Reentry Defendant Was Incompetent for Trial Rejected

US v. Lopez-Hodgson, No. 08-2106, 5/28/09 (unpublished)- The 10th rejects a challenge to defendant’s competency to stand trial and upholds his conviction for reentry after conviction for an aggravated felony. The district court properly admitted the testimony of a forensic psychologist from the US Medical Center for Federal Prisoners, and did not clearly err in agreeing with his opinion that defendant was competent to stand trial, despite contrary opinion from two defense experts.

Friday, May 22, 2009

No Relief for Crack Defendant Who Received Mandatory Minimum

US v. Dennis, No. 08-6197, 5/21/09 Unpublished - Another crack sentencing reduction denial affirmed. The problem with this one was that defendant got a mandatory minimum 20 years, and was therefore not sentenced pursuant to a guidelines range that was subsequently lowered.

Odd Story, Different Name on Rental Agreement, Nervousness Equal Reasonable Suspicion

US v. Duenas, No. 08-3108, 5/21/09 Unpublished - Denial of motion to suppress evidence obtained after a routine traffic stop affirmed. After cop gave defendant warning ticket for speeding, he asked for consent to search. Defendant refused, but so what? Cop already had reasonable suspicion based on typical stuff - rental agreement in different name, odd story, extreme nervousness, etc.

Judge May Not Appreciated Full Scope of Sentencing Discretion

US v. Leyva-Ortiz, No. 07-2229, 5/21/09 Unpublished - Defendant gets a remand for resentencing in this reentry case because the district judge might not have appreciated that he had the discretion to vary downward based on disagreement with the policies underlying the reentry guidelines, given that the sentencing occurred prior to Gall and Kimbrough, the judge presumed the guidelines range was reasonable (although this was not plain error), and there was nothing in the record to indicate that he was aware of his ability to vary downward.

Wednesday, May 20, 2009

Circuit Snippets

An indicted employee had a right to discover the results of an internal company investigation that the company had turned over to federal investigators (in the hope it would avoid indictment itself), even though the company had reserved its privilege in the materials when giving them to the government. Even if the company had a basis for believing its letters to federal investigators preserved work-product and attorney-client privilege in the documents, that expectation was unreasonable in light of the employee's right to discovery in the criminal case, the D.C. Circuit held. Because the employee had reason to believe the materials contained exculpatory material, the court remanded for the district court to determine which documents were material to the employee's defense. US v. Thompson, No. 08-5203 (D.C. Cir. 4/17/09)

Suppression was required where a federal agent took 21 days to seek a search warrant for a computer hard drive the agent had seized, the Eleventh Circuit held. The fact the agent was at a training course during that time did not make the delay reasonable. US v. Mitchell, No. 08-10791 (11th Cir. 4/22/09)

A six-year sentence for a defendant convicted of trading child pornography was unreasonably severe, even though the defendant faced a guideline range of 10 years, the Third Circuit determined. The 18-year-old defendant had presented expert reports that indicated he was socially immature and not a pedophile. The Court, in reversing the sentence, stressed that district courts must give meaningful consideration to all the 3553(a) factors, and it was not apparent that the district court had actually considered the lengthy and positive reports of the three defense experts. Additionally, the record did not support the district judge's characterization of the defendant as a "pedophile monster." The district court was told to impose a reasonable sentence with particular attention to the "overarching" parsimony principle. US v. Olhovsky, No. 07-1642 (3d Cir. 4/16/09)

In another sentencing case, the en banc Third Circuit refused a government appeal to reverse a sentence of probation imposed on a tax evader. The guidelines recommended a sentence of 12-18 months and a fine of $3,000-$30,000. The sentence imposed was 250 hours of community service, three years of probation, and a fine of $250,000. The appellate court concluded that the requirement that it apply a deferential standard of review necessitated affirmance. It also characterized the variance as "not substantial" and emphasized the defendant's charitable works. The dissenters thought the plumber's tax evasion was particularly egregious and a non-incarceration sentence an abuse of discretion. US v. Tomko, No. 05-4997 (3d Cir. 4/17/09) en banc

The 9th Circuit held that Second Amendment individual right to bear arms does apply to the states, but an ordinance banning guns on county property does not violate that right because it "regulates gun possession in public places that are County property," rather than limiting the right of self-defense in the home. Nordyke v. King, No. 07-15763 (9th Cir. 4/20/09)

The 8th Circuit reversed a defendant's convictions for concealing or shielding illegal aliens from detection. The court agreed with the defendant that the jury instructions correctly stated the elements of the crime, but because the jurors were also supplied with a list of illegal aliens, the jurors could improperly "mix and match" aliens to the elements. The unanimity instruction did not help in this case, and the verdict form made the mess worse by using "harbored or attempted to harbor" to describe "concealing." US v. Pereyra-Gabino, No. 08-2869 (8th Cir. 4/16/09)

Possession of child pornography qualifies as a crime of moral turpitude for purposes of revoking a convicted alien's naturalization. In this case, the alien had concealed the fact of prior conviction for the offense on his application for naturalization. US v. Santacruz, No. 07-55470 (9th Cir. 4/20/09)

A scheme involving submission of fake entries in an Indian casino raffle violated 18 USC 1167(b), which prohibits purloining, stealing, etc. money belonging to an Indian gaming establishment. US v. Moore, No. 08-1177 (7th Cir. 4/21/09)

Random Monitoring of Computer Use Too Broad a Supervised Release Condition

United States v. Matteson, No. 08-2176 (10th Cir. 2009)(unpublished)

Congratulations to defense counsel for a sentencing remand resulting from great teasing out of good stuff on appeal which prompted a government concession.

As a condition of supervised release for Defendant’s bank fraud and stolen mail convictions (the offenses involved Defendant making counterfeit checks on his computer), the district court imposed heavy-duty random monitoring of D’s computer use. The Court determined that the condition was too vague as to whether it applied to all computers to which Defendant had access. Because the government conceded this point, it was not reviewed under the plain error standard. The Court did not reach Defendant’s second argument that the “every keystroke” condition was too broad, stating that how the district court clarified which computers were effected by which conditions might have a bearing on whether the monitoring was too broad.

Tuesday, May 19, 2009

U.S. v. Tang, 2009 WL 1353755 (5/15/09) (unpub'd) - Regardless of whether the defendant violated Utah's law to keep in the lane as much as practicably possible, the defendant's driving for 7 to 8 seconds for 200 to 300 yards over the line on a curving mountain road gave rise to reasonable suspicion the driver was sleepy or impaired justifying the stop.

U.S. v. Barraza, 2009 WL 1313759 (5/13/09) (unpub'd) - The defendant was charged with transporting two aliens. One transported person testified he was an illegal alien. For the other transportee, the government introduced a signed statement by him that he was an illegal alien. The 10th assumed that was a violation of the Confrontation Clause, but found the error harmless beyond a reasonable doubt because the evidence was overwhelming that the transportee was an illegal alien. The absent transportee was hiding under a van's back seat, the other transportee was an illegal alien and no narcotics were found, excluding an alternative reason for the transportee to be hiding and there was no evidence indicating the transportee was legally here.

U.S. v. Dawson, 2009 WL 1322353 (5/13/09) (unpub'd) - An extra twist on the case law precluding § 3582(c)(2) relief for career offenders. The 10th finds irrelevant the fact that the d. ct. at the initial sentencing considered the crack guideline range [that was subsequently lowered] before selecting the sentence. "He was still sentenced as a career offender," the 10th declares.

Charalambos v. Holder, 2009 WL 1303160 (5/12/09) (unpub'd) - Even though FARC constantly threatened her life and had killed her brother and kidnapped her nephew for two months, the Colombian alien was not entitled to asylum because the FARC persecuted her based on its incorrect belief that she supported the paramilitaries, not because of any actual political belief she held.

Friday, May 15, 2009

Federal Public Defender for the District of Kansas Named

According to a press release from the Tenth Circuit Court of Appeals, Cyd Gilman has been appointed to be the Federal Public Defender for the District of Kansas.

Ms. Gilman, a Kansas native, earned her undergraduate degree at the University of Kansas and her law degree at Washburn University. Ms. Gilman grew up in Salina, Kansas and has been practicing law since 1978. She has been an Assistant Federal Public Defender in the Wichita, Kansas office since 1983. The Honorable Kathryn H. Vratil, Chief U.S. District Judge for the District of Kansas, administered the oath to Ms. Gilman, on April 24, 2009, after which Ms. Gilman officially assumed the duties of the office of the Federal Public Defender.

Wednesday, May 13, 2009

ECF to be Mandatory as of June 1

The Court will begin requiring filing of most documents using the appellate ECF system beginning June 1. Information, including a User's Manual and on-line video tutorials, is available here on the Court's website.

Thursday, May 07, 2009

Circuit Snippets

In a case reeking of questionable motives (white woman driver, African-American male passenger, predominantly African-American neighborhood known for drug trafficking), the Sixth Circuit concluded that Brendlin's rule that a stop of a car seizes the passengers as well as the driver did not apply where the passenger got out of the car and tried to leave. The officers suspected drug dealing, and thus hemmed in the car after the defendant got back into it. He tried to leave. When he did so, the officers ordered him to stop (they claimed they observed a suspicious "lump" in the front of his sweatshirt and had a look on his "like a deer caught in headlights"). He was found to possess a gun and faced federal gun charges. The district court suppressed, on the basis that even if the defendant was not seized until after he got out of the car and was ordered to stop, the officer did not have reasonable suspicion. The Sixth Circuit reversed, faulting the district court for not giving sufficient weight to the officers' observations and belief that the defendant was drug trafficking. US v. Jones, No. 07-5994 (6th Cir. 4/16/09)

Possession of an unregistered firearm is not a crime of violence for purposes of 924(c)(1), the Tenth Circuit held. US v. Serafin, No 07-8086 (10th Cir. 4/14/09)

The fact that prosecutors retained the right in an immunity agreement to use evidence of defendant's proffer statements if the defense offered evidence at trial that contradicted those statements did not allow the prosecutors to presumptively admit those statements in the government's case in chief, the 8th Circuit held. Even though the government should have waited until rebuttal, the defendant was not prejudiced and therefore his conviction for tax violations was affirmed, the court held. US v. Al-Esawi, No. 08-1600 (8th CIr. 3/31/09)

When resentencing a defendant at a Rule 35(b) resentencing based on post-sentencing substantial assistance, the district court can only consider the substantial assistance, and not (as here) any disparity between the defendant's sentence and the co-defendants' sentences. US v. Poland, No. 08-1203 (1st Cir. 4/2/09)

When a defendant obtains vacatur of prior state convictions, a district court may vary upward based on the conduct involved in those conditions. In this case, the defendant, before sentencing, successfully convinced the state court to vacate two prior convictions (on the basis he was mentally ill when he pled guilty to them) to avoid career offender designation. The district court departed upward, and the First Circuit affirmed. US v. Marsh, No. 07-1698 (1st Cir. 4/1/09)

The district court did not abuse its discretion when it concluded that the government had presented insufficient evidence at a parole revocation hearing and decided that the thing to do was to continue the hearing so that the government could come up with more evidence. Not surprisingly, it did so, and the 8th Circuit said that was fine. US v. Bennett, No. 08-1399 (8th Cir. 4/8/09)

Wednesday, May 06, 2009

Contention That Court Should Have Argued Second Compentency Eval Rejected

United States v. Cornejo-Sandoval, ___ F.3d ___, 2009 WL 1195527 (10th Cir. 2009)
Court rejects D’s procedural and substantive competency claims regarding court’s failure to order a second competency evaluation during trial. 18 USC Sec. 4241(a) sets out the procedure when a question of competency arises. Review of a decision whether to order a second exam is not plenary–rather, it is for an abuse of discretion. Counsel’s initial agreement that D was competent a week before trial, the pre-trial evaluation noting that D was competent at that time but was merely a very difficult and angry client, and the trial court’s observation that D was trying to disrupt the proceedings, combined so that COA could not say trial court abused its discretion in not ordering a second evaluation. D’s failure to succeed on his procedural competency claim forecloses his substantive competency claim.

Family Relationship to Suspect Insufficient to Support Stop of Sister, Search of Parents' Home

Poolaw v. Mercantel, ___ F.3d ___, 2009 WL 1176466 (10th Cir. 2009)
Fourth Amendment violated when police stopped the car of the sister-in-law and searched the home of the parents-in-law of the primary suspect in a police killing (Astorga case). Familial relationship is not particularized enough suspicion to overcome an individual’s reasonable expectation of privacy. The family relationship, even when combined with “meager” additional facts, did not establish RS in the case of the sister-in-law, nor PC for a search warrant in the case of the parents-in-law. These principles are clearly established, and the cops do not have qualified immunity in Sec. 1983 action. O’Brien dissented.

Prisoner Certification Proved Timely Mailing

Brown v. Leavenworth County, Kansas, 2009 WL 1132358 (4/28/09) (unpub'd) - The prisoner satisfied proof of timely mailing by certifying he used the prison's internal legal mail system. A declaration under penalty of perjury or a notarized statement regarding mailing is not required when the prisoner certifies he used the prison's legal mail system.

Upward Variance in Child Porn Case Affirmed

U.S. v. Ray, 2009 WL 1133133 (4/28/09) (unpub'd) - The 10th affirms upward variance for transporting child porn from 180-210 months to 270 months because the defendant was a danger to the public, as evidenced by a very bad psychosexual evaluation. The d. ct. adequately considered the defendant's offer to be chemically castrated by explaining its variance grounds, even though the court didn't mention the castration proposal.

Decision Remanded in light of Nelson

U.S. v. Covington, 2009 WL 1151330 (4/28/09) (unpub'd) - After a remand from the S. Ct. to reconsider in light of Nelson v. U..S., 129 S. Ct. 890 (2009) (reversal for d. ct. presuming the guideline range to be reasonable), the 10th remands to the d. ct. The d. ct. had said: "the guidelines are still given great weight and we are still bound to basically follow them, except in very unusual circumstances, or we just get reversed." Remarkably, on the first go-round, Judges Tacha and Kelly thought the d. ct. had treated the guidelines as advisory. The soon-to-be-retired Judge McConnell had dissented.

Interstate Travel at Any Time Sufficient Nexus for Federal Gun Conviction

U.S. v. Urbano, 2009 WL 1143605 (4/29/09) (Published) - In a felon-in-possession case, evidence that the gun traveled in interstate commerce at some unspecified earlier time is enough to satisfy the Commerce Clause. No other proof of nexus or effect on interstate commerce is necessary. Therefore, the d. ct. correctly refused to instruct the jury that the government had to prove the natural and probable consequences of the defendant's acts were to affect interstate commerce. Finding crack in the defendant's pocket and seeing the defendant throw something over a fence and finding a gun in a pond on the other side of the fence provided sufficient evidence of possession of crack and a firearm respectively. Under the 6th Amendment, preponderance is a high enough standard of proof for judicial fact-finding that doubles the guideline range.

18-year Sentence Reversed By Divided Panel

U.S. v. Lente, 2009 WL 1143167 (4/29/09) (unpub'd) - Reversal of 18-year sentence for 3 involuntary manslaughter convictions and one conviction for assault, for DWI, cross-the-center-line, crash. A majority did not agree on a rationale for the decision. In one paragraph, Judge Hartz rules that the government breached the plea agreement by endorsing a PSR recommendation of an upward variance for failure to accept responsibility when it had stipulated to a three-level acceptance of responsibility reduction.

For the sake of resolving what to do next, Judge Holmes goes along with the usual plea-breach remedy of remanding to a different judge. But Holmes apparently does not agree with the plea breach rationale. In a 41 page opinion he finds the upward variance from 46 to 57 months to 216 months was substantively unreasonable. Holmes finds that every one of the 7 variance grounds was a legitimate ground, but combined the grounds were not compelling enough to warrant the size of the variance, particularly in light of the "laconic" i.e., Judge Conway-style explanations, particularly with respect to the weight given each ground. The grounds were: (1) high BAL, .21, thus knowingly risking lives on the road; (2) the defendant did not have a driver's license [could not be significant factor]; (3) the defendant had tribal convictions and three arrests, most of which involved excessive alcohol and violence [none for DWI] and no counsel [noted by Holmes] [could not be significant factor]; (4) the defendant initially blamed a passenger for crash, but later accepted responsibility [could not have assigned great weight]; (5) the defendant needed vocational and educational training [of little weight]; (6) the accident caused particularly severe damage to victims' families; and (7) policy disagreement because involuntary manslaughter has a similar guideline range to less serious offenses like reentry or drug offenses [could it be those guidelines are too high?]. In the course of the opinion, Holmes stresses parsimony, compares the level of variance in this case to other lesser levels of variances in other cases, goes for pages without resolution on the question of whether "closer review" must be given to policy disagreement variances and explains why the involuntary manslaughter guidelines might actually be the result of the Sentencing Commission doing its job, i.e., doing empirical research, using task forces to study the issue, etc.. A definite must-read opinion if you're up against an upward variance possibility and also if policy disagreement is a possible variance ground.

Judge McWilliams dissents without explanation.