Friday, July 31, 2009

Conviction of Both Drug Conspiracy and CCE Counts Violate Double Jeopardy; Other Arguments Rejected

US v. Hutchinson et al, -- F.3d --, 2009 WL 2217521 (10th Cir. 7/27/09) - appeal of crack convictions on retrial, after first jury hung and a mistrial was declared, of several defendants who ran a curbside crack operation out of a Denver motel.

Until a drug-related murder messed things up, defendants exhibited a powerful, if "peculiar," community spirit; they ran a Mother's Day "crack scramble" involving crack tossed from a balcony onto a parking lot for moms to grab, as well as an Easter egg hunt with crack rocks substituted for eggs. The jury was adequately instructed on the structure required to meet RICO's enterprise element in light of recent Boyle v US, 129 S.Ct. 2237 (2009), decision. As gov't conceded, because drug conspiracy is a lesser included offense of CCE, convictions of both violate double jeopardy, so case is remanded to district court for one of the two convictions to be vacated.

Suppression motion was properly denied as arrest was pursuant to warrant and officers reasonably believed the defendant in question lived in the house and was there at the time of the arrest. District court did not abuse its discretion by denying motion to substitute counsel as evidence showed defendant and his counsel were still capable of communicating. Severance of defendants' cases was properly denied as there was insufficient showing of "actual prejudice" to the defense from joint trials and a curative instruction was given. There was no speedy trial violation on retrial. There was sufficient evidence that one of the defendants participated in the conspiracy to distribute crack and the RICO enterprise and exercised "broad discretion" and managerial power. District court did wrongly conclude that a 20-year statutory minimum applied to convictions for possession with intent to distribute. District court did not err by denying acceptance of responsibility reduction.

Pre-Gant Search Upheld Under Good Faith Exception

United States v. McCane, ___ F.3d ___, 2009 WL 2231658 (10th Cir. 2009).
Following Gant, the Court determined that the search was not valid as incident to the defendant’s lawful arrest (Defendant arrested for a traffic violation and cuffed and placed in patrol car, the car was then searched and a gun found) but upheld the search under the good faith exception to the exclusionary rule per Herring. In the first (second?) of what can be expected to be many Herring-driven erosions of the exclusionary rule, the Court determined that there was no deterrent value in suppressing evidence when the police officer, in the pre-Gant seizure, had relied upon the existing law which made such seizures legal.

Unremarkable sufficiency of evidence determination–gun in driver’s door where Defendant was sitting, and he made an inculpatory blurt-out statement indicating knowledge of gun.

Felon in possession, 18 USC Sec. 922(g), is constitutional–Heller explicitly stated that the opinion did not affect prohibition on felons possessing firearms. Tymkovitch’s concurrence bemoans the door shutting to a broader exploration of what the “felon dispossession” statutes mean in the context of the Second Amendment, identifying that language in Heller as dicta, but feeling bound by it.

Wednesday, July 22, 2009

No Qualified Immunity for Defendants Who Subjected Plaintiff to Strip Search

Myers v. James, 2009 WL 2050726 (7/16/09) (unpub'd) - The 10th affirms refusal to dismiss a § 1983 action on qualified immunity grounds. It was clearly established that requiring a person arrested for public intoxication to take off her clothes, take a shower and be visually inspected [not cavity searched] by officer violated the 4th Amendment. Nothing in the record established a justification, such as the arrestee would be sent into general population or a reasonable suspicion the arrestee was carrying a weapon.

Alien Not Denied Due Process Despite Gaps in Appellate Record

Witjaksono v. Holder, 2009 WL 2096220 (7/17/09) (Published) - The alien was not denied his right to a reasonably complete appellate record, even though in the 57 pages of transcript of the removal hearing there were 189 notations of indiscernible. The indiscernibles were almost all during the alien's testimony. He should have tried to fill in the gaps himself, since he should know what he testified to. So he failed to demonstrate prejudice and thus failed to establish a due process denial.

No Abuse of Discretion in Admitting Evidence of Defendant's Abuse of Children in Parental Kidnapping Case

U.S. v. Rizvanovic, 2009 WL 2105231 (7/17/09) (Published) - Where the defendant was charged with international parental kidnaping, it was not an abuse of discretion to allow the government to cross and present evidence regarding the defendant's alleged physical abuse of the children. The evidence helped the government counter the defendant's claim that he took the children to protect them from the abusive mother, since the evidence indicated he was not interested in protecting the children from harm. And the defendant's failure to report the mom's abuse during the prior custody proceedings undermined the credibility of his current allegations against the mother. Rule 608, which precludes extrinsic evidence for impeachment purposes, was not in play because the evidence was admissible for substantive reasons.

Any error in the trial court's instruction to use the state court's finding of defendant's abuse only for impeachment purposes inured to the defendant's benefit and was therefore harmless.

Church Was an Arson "Victim" under 18 U.S.C. § 1153(a

US v. Jane Doe, a female juvenile, and John Doe, a male juvenile, Nos. 08-1137 and 08-1184 (10th Cir. 7/20/09) - arson convictions affirmed. The arson victim, the Ute Mountain Presbyterian Church, constituted a "person" under 18 U.S.C. § 1153(a). The statutory context does not require a "person" to be a living individual. The legislative history supports the conclusion that § 1153's use of "person" applies to living individuals and corporations, but not unincorporated associations. There was sufficient evidence at trial of the corporate ownership of the burned church. District court did not abuse its discretion by permitting the gov't to reopen the case to present evidence concerning church ownership because its failure to establish it earlier was inadvertent and the defense did not suffer substantial prejudice. Even if the superseding information should have set forth the identity of the church's owner, the error was harmless. The information identified the date, place, the church allegedly burned, and cited § 1153.

Fingerprint Analysis Testimony Admissible

US v. Baines, -- F.3d --, 2009 WL 2139117 (10th Cir. 7/20/09) - The district court did not abuse its discretion in admitting expert fingerprint analysis testimony. Defense argued gov't did not establish reliability of method for matching latent print to defendant's known print. As to the first Daubert factor, the record did not establish that the fingerprint analysis technique has been subjected to testing meeting rigorous scientific standards, but it has been around a long time and the FBI conducts demanding training followed by proficiency exams, so this weighs somewhat in favor of admissibility. The second Daubert factor, peer review and publication re: the theory or process, was not established by the gov't and did not weigh in favor of admissibility. The third factor, the known or potential error rate of the procedure, strongly supported admission of the expert testimony. Agent Meagher testified to an error rate of one per every 11 million cases. Can't not be impressed with that, tho the court did recognize there "may have been" unidentified errors due to lack of defense resources to hire independent experts and obstacles to post-conviction review. The fourth factor, the existence and maintenance of standards controlling the technique's operation, was found not critical to deciding the appeal, so could be assumed not to support admissibility. As to the fifth factor, general acceptance of the technique in the relevant scientific or expert community, there was overwhelming acceptance, tho not by a community of unbiased experts. All in the all, the record supported the district court's finding of sufficient reliability to permit admission of the fingerprint analysis.

Innocence Project Report Focuses on Eyewitness Identification

A new report from the Innocence Project of the Benjamin Cardozo School of Law, Yeshiva University, focuses on eyewitness identifications and lineups. Called "Reevaluating Lineups: Why Witnesses Make Mistakes and How to Reduce the Chance of a Misidentification," describes common problems with lineups and suggests changes to prevent erroneous identifications that result in the convictions of innocent persons.

The report discusses a host of factors that can contribute to wrongful identifications. These include conditions at the time of the crime (such as poor lighting), increased stress at the time of the crime (such as from the presence of a weapon), and cross-racial identification. These factors are inherent in the situation. However, the report also discusses procedural problems in the identification process that can lead to erroneous results and altered memories. These procedural problems can include suggestive photo arrays and linueps, subtle and not-so-subtle cues from the lineup administrator, and the witness's failure to understand the purpose of the identification procedure and belief that an identification is necessary.

The report advocates systemic reform in eyewitness identification procedures. These reforms include changes to increase accuracy in line-ups; having the line-up administered by someone who is not involved in the investigation to minimize influencing the witness; changing the instructions given to witnesses so that they do not feel pressured to select someone from the lineup and realize that the perpetrator may not be present; and electronically recording the procedure. Some states and agencies are already adopting reforms intended to reduce the chance of an innocent person being falsely identified and convicted of a crime based on a faulty eyewitness identification. Hopefully, this report will provide impetus to continue the trend.

Not Plain Error to Determine CA Kidnapping, Robbery Convictions were Crimes of Violence

US v. Juarez-Galvan, -- F.3d --, 2009 WL 2137396 (10th Cir. 7/20/09) - In a reentry case, it was not plain error to impose the 16-level crime of violence enhancement for California convictions for kidnapping and robbery. Gov't conceded neither offense had an element of use of physical force. While both kidnapping and robbery are enumerated offenses under § 2L1.2, there was conflicting authority as to whether the state definitions of the offenses corresponded to the uniform generic definitions. Because the law was not well-settled, the district court did not plainly err in applying the enhancement.

Friday, July 17, 2009

Unpublished Decisions

U.S. v. Jimenez, 2009 WL 1927370 (7/7/09) (unpub'd) - The contention that officers were not lawfully in a particular place from which they saw incriminating stuff in plain view could not be raised by the defendant who did not have a legitimate expectation of privacy in the place the officers invaded. Consequently, the defendant could not contest the legality of the officers' protective sweep of a home which the defendant only visited to conduct his drug business.

U.S. v. Garton, 2009 WL 1927400 (7/7/09) (unpub'd) - The 10th indicated the government probably violated a felon-in-possession plea agreement promise not to seek charges against the defendant for any additional offenses arising out of the circumstances of that case when it later introduced evidence of the felon-in-possession incident during a trial resulting in the defendant's conviction for a drug conspiracy and carrying a firearm in relation to the drug conspiracy. But any error was harmless because the evidence was overwhelming that the defendant was guilty of committing the charged offenses over the course of time after the events related to the plea agreement.

U.S. v. Green, 2009 WL 1991364 (7/10/09) (unpub'd) - The defendant's waiver of counsel was knowing and voluntary when he was given the choice of either proceeding with competent, prepared counsel or representing himself.

Thompson v. Sirmons, 2009 WL 1991324 (7/10/09) (unpub'd) - The habeas petitioner did not preserve his objections to the magistrate's [oh, excuse me, magistrate judge's] findings by saying "all the remainder of the magistrate's [sic] propositions are contrary to federal law." Objections to a magistrate's [oh, excuse me, magistrate judge's] habeas findings must be more specific than that to avoid waiver of claims on appeal.

Circuit Snippets

Defendants have a right to cross-examine analysts who conduct and write reports on forensic laboratory tests, the Supreme Court held. The sworn reports are "clearly testimonial." Melendez-Diaz v. Mass., No. 07-591 (U.S. 6/25/09)

A school administrator violated a 13-year-old girl's fourth amendment rights when he ordered that she be strip searched on suspicion that she possessed ibuprofen, but the asst. principal received qualified immunity in the civil rights lawsuit because the law was not sufficiently clear at the time of the search. There was sufficient suspicion to justify a search of the student's outer clothing and backpack. Safford v. Unified Sch. Dist. # 1 v. Redding, No. 08-479 (U.S. 6/25/09)

The 8th Circuit upheld federal convictions for bribery, wire fraud, mail fraud and conspiracy based on "honest services fraud" even though the indictment, jury instructions, nor the government didn't mention that theory or reference the statute that authorizes that basis for guilt, 18 U.S.C. 1346. Defendant ran a truck driving school, and bribed an instructor at another school (that was certified) to pass defendant's students even if they did not complete the required the testing. It was not necessary to cite 1346 in the indictment because that statute merely defined a term in 1341 and 1343, which were included. The jury instructions were adequate because they correctly laid out the elements of mail fraud. Although the prosecutor never talked about "honest services fraud," the government had consistently argued that the state was injured by the instructor's practice of administering inadequate tests -- in other words, the court reasoned, withholding the honest service he owed the state. US v. Redzic, No. 08-2418 (8th Cir. 6/22/09)

The 7th Circuit held that, even though 18 USC 371, the general conspiracy statute, required prosecutors to prove at least one co-conspirator committed an overt act in furtherance of the conspiracy, jurors are not required to unanimously agree on which overt act was committed. All that is required is that they agree that something was done. US v. Griggs, No. 06-4211 (7th Cir. 6/24/09)

The Sixth Circuit found that a defendant's pro se filings, no matter how obnoxious, could not support an upward enhancement at sentencing under USSG 5K2.0.
US v. O'Georgia, No. 05-2598 (6th Cir. 6/24/09)

A defendant who defrauded winning bidders through internet auction websites properly had his sentence enhanced for perpetrating his crime through "mass marketing," USSG 2B1.1(b)(2)(A)(ii), even though the ultimate number of victims was small. The enhancement was designed to reach defendants who solicit large numbers of potential victims. US v. Heckel, No. 07-3514 (7th Cir. 6/22/09)

Forcibly extracting a DNA sample from a pretrial detainee without a warrant or any basis to suspect the detainee has committed a particular crime under investigation clearly violates established Fourth Amendment law, the 9th Circuit held in denying a prosecutor and a police detective qualified immunity in a civil rights case. Friedman v. Boucher, No. 05-15675 (9th Cir. 6/23/09)

When defendants who are on supervised release and spend time in jail in connection with new charges for which they are later convicted, their terms of supervised release are tolled during the pretrial detention period, the 5th Cir. held. US v. Molina-GazcaI, No. 08-50620 (5th Cir. 6/11/09)

A judge can rely on a PSR's description of a prior arrest to find that a defendant's criminal history score is underrepresentative and should be increased; USSG 4A1.3(a)(1) prohibits only that a district court can not rely on the mere fact the defendant has prior arrests in enhancing a sentence. US v. Robertson, No. 08-3126 (10th Cir. 6/19/09)

Tuesday, July 14, 2009

No Denial of Defendant's Right to Represent Himself in Tax Case

US v. Miles, -- F.3d --, 2009 WL 2005250 (10th Cir. 7/13/09) - Mr. Miles was not denied his right to self-representation between the time the jury convicted him on nine counts of willfully filing false income-tax returns and his sentencing. He had represented himself at trial, then asked for his standby counsel to speak for him re: release after he was convicted. The district court reasonably believed that he waived his right to self-representation at that point and it allowed him to represent himself pro se when he asserted his right to do so at sentencing.

COA Approves Sentencing Under Manslaughter GL for Felon in Possession

US v. Cherry, -- F.3d --, 2009 WL 2005235 (10th Cir. 7/13/09) - in sentencing Mr. Cherry for felon in possession of a firearm, the district court properly analogized his conduct in connection with his possession of a firearm to voluntary manslaughter under USSG § 2K2.1.

Friday, July 10, 2009

Court Rejects Juror, Misconduct and IAC Claims to Affirm Death Penalty

Matthews v. Workman, ___F.3d ___, 2009 WL 1927051 (10th Cir. 2009).

Death penalty upheld in habeas corpus petition. (1) COA applies Brecht “substantial and injurious effect” test to juror’s improper communication with excused alternate after guilt phase, previous to penalty phase, where alternate said newspaper account of crime supported the guilty verdict, and juror told other jurors during penalty phase that she had spoken with alternate, though they did not recall any mention of newspaper account. COA says that Petitioner never argued residual doubt, so confirmation of guilty verdict by paper would not have influenced juror’s death vote–no harm.

Regarding a second juror issue: AEDPA deference to state court determination under its Evid. Rule 606 not to take post-verdict juror testimony about deliberations (different juror said made up mind to impose death before the penalty phase, and Petitioner claimed a Due Process violation), and no S. Ct. precedent that requires it.

(2) Sufficient evidence of guilt under Jackson (will not re-count)

(3) Brecht standard applied to prosecutorial misconduct claims (state court reached merits of claims in spite of counsel’s failure to object at trial, so fed court does too, applying AEDPA deference). In spite of some pretty egregious argument, the state court’s determination that it did not render trial fundamentally unfair was not unreasonable. One claim, however, the COA plays fast and loose with: that the prosecutor commented on P’s right to remain silent. The COA said that this was really a comment on Petitioner’s failure to present evidence, and the only objection below was that it was a comment on silence, not an objection to improper burden shifting. State court not wrong to determine there was not improper comment on silence.

(4) Ineffective Assistance of Counsel claim (reviewed de novo): Failures to cross-examine and failure to present witness were strategic, tactical choices–would open the door or would expose ambiguous unhelpful information. Failure to present certain mitigation evidence harmless because cumulative of evidence already in.

Mid-trial Disclosure of Brady Material May Violate Due Process

United States v. Burke, ___ F.3d ___, 2009 WL 1926850 (10th Cir. 2009)
Clarifying older case law that might have implied differently, the Court holds that belated, mid-trial disclosure of impeachment or exculpatory information per Brady violates due process, if it is shown that an earlier disclosure would have created a reasonable doubt of guilt. The defense must articulate to the court why the delay is materially prejudicial. The district court then has discretion to determine an appropriate remedy: exclusion of the witness, limitations on the scope of testimony, instructions to the jury, or even mistrial.

Although a Brady violation, Defendant failed to articulate why the disclosure during government examination of its own witness of witness’s plea agreement with government materially prejudiced him so that the sanction of striking his testimony would be appropriate. Defendant thoroughly cross-examined the witness on the agreement once it was disclosed. Although Defendant now argues on appeal that he was prejudiced in how he designed his trial strategy, that was not an argument made to the district court. Not plain error. Harmless error in suppression of cross-examination of government witness: that witness’ testimony was cumulative of other testimony.

Petitioner Not Responsible for Counsel's Delays; Petition Should Not Have Been Dismissed

Davis v. Miller, ___F.3d ___, 2009 WL 1926915 (10th Cir. 2009)
District court abused its discretion in dismissing with prejudice the Sec. 2254 habeas corpus petition under Rule 41 for failure to comply with court orders: Petitioner’s attorney asked for numerous extensions of time to amend the petition and missed them all. Under balancing test: (1) respondent, who never entered an appearance, was not prejudiced. The preliminary habeas corpus petition was complete and apprised respondent of all claims; (2) while the judicial process was delayed and interfered with, the fault lay with counsel, not petitioner, and sanctions should be directed against counsel. Counsel had family and office problems, and none of the delays were directed by Petitioner or were strategic; (3) counsel had notice that dismissal was possible; (4) lesser sanctions would be appropriate: an incarcerated litigant stands in a different position than a civil litigant with resources at his disposal and Petitioner should not be so bound by his counsel’s actions. A malpractice suit could not bring Petitioner freedom. The balance of factors show that dismissal with prejudice was too harsh a sanction. Reversal.

Petitioner Receives Relief Because Trial Counsel Recommended Rejecting Plea Offer

Williams v. Jones, No. 06-7103, 7/8/09 - Defendant was charged in Oklahoma state court with first degree murder and was offered plea to second degree and a ten year sentence. Believing defendant to be innocent, his lawyer told him to reject the offer or get a new lawyer. Defendant went to trial, was convicted, and got life without parole. State courts agreed that counsel rendered ineffective assistance, and the OCCA also found prejudice, but limited its remedy to reducing sentence to life with the possibility of parole, the lowest possible sentence for first degree. On federal habeas, defendant claimed the remedy was inadequate. The district court found the reduced sentence to be inherently constitutional and denied the petition. The 10 reversed, holding that the remedy was an objectively unreasonable application of federal law. The federal standard is to “impose a remedy that comes as close as possible to remedying the constitutional violation, and is not limited by state law.” The case was remanded to the state district court for briefing and argument on what the appropriate remedy should be. Judge Gorsuch dissented because, in his view, getting a fair trial means defendant cannot demonstrate prejudice from the IAC.

Monday, July 06, 2009

"Reasonableness" Standard Adopted for FOIA Requests

Trentadue v. FBI, 2009 WL 1886696 (10th Cir. July 2, 2009) (published)
In this case, in which Mr. Trentadue sought records from the FBI under the Freedom of Information Act, the Tenth Circuit adopts the standard of other circuits that FOIA requires only that an agency make a "reasonable" search of its records to comply with a FOIA demand.

Thursday, July 02, 2009

Tenth Affirms Denial of Hearing on Issue of Juror Bias

United States v. Brooks, ___F.3d ___, 2009 WL 1862529 (10th Cir. 2009)

Tenth Circuit upholds denial of evidentiary hearing on issue of juror bias, and finds no plain error at Defendant’s initial appearance for alleged failure to advise him of all his rights.

District court did not abuse discretion in finding no actual bias and no extraordinary circumstances. Defendant’s ultimate bid was for a new trial if he could show bias. A juror who Defendant said he had met and that his sister(who was on witness list), knew, had answered during voir dire that she did not know Defendant or any witnesses. The sister owed this juror money. Tenth Circuit said there was no evidence that this juror knew Defendant, who had been in her presence only 5 or 6 times over a six year period, ending 2 years before trial. Defendant did not recognize the juror. The sister’s first name was wrong on the witness list read during voir dire. Defendant failed to state how a hearing would help him elicit more facts, or be useful and necessary in exposing actual or implied bias.

District court did not err in failing to tell Defendant of his right to a Rule 5(d) preliminary hearing at his initial appearance–he had been indicted before his initial and had no right to a prelim. There was error in not informing Defendant of right not to make a statement but it was not plain because Defendant exercised right to remain silent.

Defendant Wins on Brady Issues; Gov't Failed to Disclose Information About Confidential Informant

United States v. Torres, ___F.3d ___, 2009 WL 1862528 (10th Cir. 2009)
Addressing Brady and evidentiary issues, the COA hands a victory to the Defendant. The opinion bears careful reading. (Sorry for the length–this is a rare fact-bound defense victory).

Set up: In May, 2005, confidential informant (CI) arranges a controlled drug buy with the Defendant. The buy is witnessed by the cops. During discovery, the government discloses that the CI has two prior felony convictions, has been working for cops for 8 months, was paid $100, was a meth user who had been clean for 15 months. Defendant asks for more under Brady/Giglio, with specificity. Government responded that it gave all material in categories requested or that there was no such material. District Court granted Defendant’s requests regarding what was already disclosed, and denied it for additional material–there was sufficient material for impeachment of CI disclosed. Court barred Defendant from cross examining CI on March 2004 arrests for drug possession and forgery because charges against CI dismissed in April 2004. Defendant was convicted.

District Court denied Defendant's new trial/Brady motion on newly discovered evidence to impeach CI which government failed to disclose: that DEA had retained CI on 2 occasions prior to Defendant’s indictment, Feb to March 2004--terminated because of forgery arrests--and August to Dec 2005. She was thus a freelancing drug dealer and forgerer in the period she was retained by DEA. Plus, CI had once during a de-briefing misidentified the subject as “Ms. Esparza’s nephew” when the subject, Defendant, was her son.

The Tenth Circuit reversed. The district court applied the wrong five-factor newly discovered evidence test, which does not apply when a Brady violation is alleged. It erroneously modified the test with Brady, discounting the impeachment evidence and heightening the burden on Defendant to show entitlement to a new trial. The error was not harmless. The Brady test requires only that the government suppressed the evidence, evidence was favorable to the Defendant, and material. Because of government concessions, materiality was the only issue for the Court of Appeals.

Emphasizing the importance of cross examining the CI in a case like this, the Tenth said a number of interesting things. Reminiscent of Melendez, it said that it is immaterial that the Defendant had said he might call witnesses to impeach the CI–Rule 608 permits cross examination of a witness with conduct that undermines credibility. The Court then reviewed the evidence and found that the case indeed hinged on the CI’s credibility, and recounted evidence that tended to show that the cops’ observations during surveillance did not provide good independent evidence against Defendant: the car in which the buy took place had dark windows; cops could not make out the conversation between CI and the drug seller; cops got only a glimpse of the seller through the windshield of the moving vehicle; cops did not have photos of Defendant before the surveillance to see if seller matched his picture; no drug sniffing dog or female cop searched CI to make sure she was not hiding drugs in her underwear prior to the buy (!); buy money never recovered from Defendant.

The Court further pointed out that the government rehabilitated the CI with DEA witnesses who called her one of the most reliable CIs they had ever worked with; she was helping as a CI in order to better the community; she had been drug free from Dec. 2004 til trial.

The CI’s conflating Defendant with a cousin was also material, given the CI’s failure to mention Defendant as a druggie in some earlier documents, and her stating that the cousin was a major drug dealer, demonstrating that the mis-naming during the debriefing was not a mere slip of the tongue.