U.S. v. Robertson, No. 08-3126 (6/19/09) (Published) - Affirmance of an upward departure with a couple of preservation lessons. Departures are alive and well in the 10th Circuit. The 10th applies the same standard of review to departures it applied pre-Booker. The d. ct. did not err when it considered the defendant's conduct associated with arrests that did not result in convictions. As long as the d.ct. relies on the conduct, not the arrests themselves, the conduct is, as the 10th says, "fair game." The recitation in the PSR of the facts underlying the arrests established a factual basis for the departure because the defendant did not object to the facts. The departure from a criminal history category III to VI [from 18-24 to 41 months] was justified by the felon-in-possession defendant's prior commission of violence with guns [similar offenses to the instant offense]. The d. ct. plainly erred when it failed to adequately explain the degree of departure. It only explained the departure grounds. But the defendant's substantial rights were not affected because it was obvious the court increased the criminal history category to what it would have been had the defendant been convicted of the offenses he was arrested for, as evidenced by defense counsel's helpful statement to that effect. The 10th waxed poetic about the wonders of the contemporaneous objection rule. To preserve the error, counsel had to object to the notion that unique factors took the case from the heartland, the degree of departure, and the failure to explain the degree. Counsel was expected to make these objections even though there was no mention of a possible departure until the sentencing hearing, and counsel had objected to the departure. The 10th talked of "substantial discretion" to depart and "substantial deference" to the d. ct.'s departure decision.

Gardner v. Galetka, 2009 WL 1725937 (6/19/09) (Published) - Habeas affirmance of state murder, this time by Utah. The 10th summarizes AEDPA as providing a back-stop and precluding federal habeas courts from refining or modifying constitutional principles. An interesting [to a habeasphile anyway] and bad AEDPA ruling: failure to provide funding for the presentation of evidence in state habeas in violation of state law did not mean de novo review in federal court, even though the state conceded de novo review applied. The state cannot waive the right to deferential AEDPA review.

The 10th rejected the following ineffective assistance of counsel claims regarding failure to: investigate the petitioner's mental health for the guilt phase [the one psych's brief exam gave no indication further evaluation would obtain better evidence; mental health evidence might open door to damaging evidence; later exam for habeas did not support insanity defense]; pursue ballistics evidence [did investigate somewhat; that gun had faulty safety device didn't show gun accidentally went off]; object to the defendant's statements [there was overwhelming evidence of intent; the statement might have been spontaneously volunteered and could have been used to impeach on cross; it was a reasonable strategy not to request a limiting instruction to use only for credibility; there was no showing medication rendered the statement involuntary; the statement could not have been excluded on 403 grounds, even if the officer's testimony was not believable, because Rule 403 is not to be used to exclude testimony that a trial judge does not find credible]; discourage the defendant from testifying [there was no guilt stage defense at all without the defendant's testimony]; timely investigate mental health for penalty phase [counsel was ineffective for waiting to the last minute to talk to expert and not offering available diagnosis, but no prejudice; additional available evidence would only have added color and information that was double-edged and could have opened the door to damaging rebuttal [don't ask why color would open the door when the original substance did not]; schizophrenia---an illness the petitioner did not have---is a more sympathetic disease than an untreatable personality disorder, which the petitioner had].

It was not a conflict of interest that the petitioner's attorneys, who were brothers, were at the courthouse when the petitioner tried to escape and killed someone, and were concerned about each other's safety at that time. There was no evidence any conflict affected their performance. In closing, counsel urged the jury to set aside the fear he experienced at the time, just as he had done to then agree to represent the petitioner.

That 55 % of the prospective jurors said they formed an opinion about the petitioner's guilt due to pretrial publicity and 4 of those people were on the jury did not establish the "circus" atmosphere required to constitutionally require a change of venue. Otherwise, you could never hold a local trial in a well-publicized case. Horrors! The petitioner's shackling and heavy security measures were justified by the petitioner's prior violent escape attempts, including the one he was being tried on.

The muted reference to the petitioner's past crimes in the guilt phase was necessary to establish first degree murder, the petitioner made the same reference during his testimony and the evidence was overwhelming anyway. The concededly erroneous instruction that allowed for a conviction if the defendant was aware of either his conduct or what the result of his conduct would be, instead of both was harmless. The jury findings and the evidence indicated the jury must have found both. The jury instructions on residual mitigation allowed the jury to consider the mitigating circumstance of the petitioner acting under duress. The instructions did not require a unanimous finding of mitigating circumstances. Hypnosis of witness that seemed to make the witness more sure of somewhat damaging evidence was not a due process problem because the state played no role in the hypnosis. And, besides, the extra certainty on a collateral issue wasn't all that harmful to the petitioner. It was not witness tampering for a prosecutor to tell a witness during a break in his testimony that he was being "too polite" when he testified "the gun went off" when he could be saying "the petitioner shot the victim" and he should "tell how it happened." This was not "witness tampering but being a good lawyer."

U.S. v. Daubon, No. 08-2189 (6/19/09) (unpub'd) - After what sounds like an excellent verdict at trial [acquittal of PWID and conspiracy of marijuana in truck and convicted of falsely representing to be a U.S. citizen], the 10th affirms the conviction. The law of the case doctrine required the government to prove what the unobjected-to jury instruction required the jury to find [which the 10th hints might have been more than it would otherwise have to prove] the defendant knew he was not a citizen and deliberately made this false statement with the intent to disobey or disregard the law. The evidence established the defendant knew he was a permanent resident ("PR") alien, not a citizen, [the jury could reject the testimony of the defendant and a border patrol agent that the defendant was confused] and knew he was required to carry and produce his PR card. The jury was entitled to believe an officer's claim that the defendant clearly denied U.S. citizenship. And, the defendant had a motive to lie, since he might want to avoid the delay attendant to showing his PR card, and thus increasing the risk of discovery of the marijuana.

U.S. v. Quintana-Grijalva, 2009 WL 1652274 (6/15/09) (unpub'd) - The defendant's abandonment of his pickup was not a result of a 4th Amendment violation but was "voluntary" because the defendant never stopped in response to the border patrol activating the emergency equipment and then chasing after him. The officers could search the truck as they pleased, whether or not they had reasonable suspicion to try to stop the defendant to begin with. And, besides, they had reasonable suspicion for reasons typical for close-to-the-border stops.

U.S. v. Lasley, 2009 WL 1653871 (6/15/09) (unpub'd) - Although one of the exceptions to enforcement of an appeal waiver is the reliance on race, the racial disparities caused by the 100-1 crack-powder ratio were not grounds to invalidate the waiver. The sentence did not "rely" on race. The stupid ratio was imposed for a number of non-racial reasons. It just happens to be racist.

Bergman v. Kieffer, No. 09-1024 (6/19/09) (unpub'd) - The 10th reverses dismissal of law suit complaining that the federal prisoner paid the defendant $ 70,000 based on his misrepresentation that he was a lawyer [the defendant had been convicted of mail fraud for pretending he was a lawyer]. The d. ct. was wrong to dismiss the prisoner's complaint for failure to file a certified copy of her trust account statement. The plaintiff successfully explained to the d. ct. why she was unable to get the statement certified [the prison officials told her she didn't have to get it certified].

Allen v. Briggs, 2009 WL 1735856 (6/19/09) (unpub'd) - The pro se prisoner had not sufficiently made any arguments to warrant consideration when he told the 10th: "I'm not able to out-litigate these people, so I'm asking you to review the records."