Free materials from a premiere expert on the interplay of immigration and criminal law

Norton Tooby, a leading authority on criminal and immigration law, has a number of free materials on his website, which should be checked out.

These include his Deportation Grounds Checklist, and Tooby's Guide to Criminal Immigration Law, a 200 or so page summary of his 2000-page guide Criminal Defense of Immigrants, which I use frequently. I urge any criminal law practitioner to download these materials and check out what else is available at the website, because the immigration consequences for any non-citizen defendant can be worse than the criminal consequences.

Unpublished Decisions; One Results in Remand on Fourth Amendment Civil Rights Claim

Edge v. Payne, August 20, 2009, No. 08-7122: Plaintiff filed suit against a dead judge, another judge, the county clerk, court reporter, court secretary, DA, a bunch of ADAs, the sheriff, undersheriff, various deputy sheriffs, several ATF agents, an unnamed Highway Patrol officer, and 25 "DOES" for good measure, in short, everyone remotely involved in his contentious divorce and subsequent criminal proceedings when he was convicted of possessing a firearm while under a protective order. He alleged various constitutional violations against the defendants, basically complaining that they were all engaged in a conspiracy against him. He separately alleged that his Fourth Amendment rights were violated when his property was searched and the search turned up the gun that resulted in the federal prosecution. He acknowledged that his girlfriend consented, but alleged it was as the result of coercion.

The Tenth agrees with the district court that the claims against the judicial officers and prosecutors were properly dismissed because they had absolute immunity for actions taken in the course of their duties. The conspiracy claims were also properly dismissed. However, the district court had not addressed the Fourth Amendment claim separately. This claim appeared to set forth necessary allegations of a constitutional violation, and the cause was remanded for the district court to further consider it.

Brantley v. Sirmons, No. 09-6032 (August 20, 2009): The court denies a COA to this state petitioner convicted of drug charges based on apparently overwhelming evidence of a meth lab. The only interesting point is that, in a footnote, the court observes that the petitioner was concerned that the judges were not reading his briefs. As a test, he apparently included a paragraph that asked the court to acknowledge that the court had read the paragraph and, thus, the brief. The district court did not make such an acknowledgement, leading the petitioner to assert the district court had not read his brief. The COA disagreed: the court did not have to accede to the petitioner's wishes, and it's failure to do so "in no way suggests that the court is not faithfully carrying out its duties."

Evidence of Prior Assaults Improperly Admitted In Assault Case Where Self-Defense Claimed

US v. Commanche, -- F.3d --, 2009 WL 2581737 (10th Cir. 8/24/09) - defense victory! In assault resulting in serious bodily injury case, the district court improperly admitted under Fed.R.Evid. 404(b) bad acts evidence against the defendant. Self defense was the defense. After being attacked first, Mr. Commanche used a box cutter. He had two other aggravated battery convictions in which he used a sharp object. Gov't claimed other incidents showed defendant carried a box cutter knife as a weapon rather than a work tool. Court of Appeals concludes it is irrelevant to self-defense inquiry that a box cutter was used on other occasions and that the other acts evidence simply showed he was violent. Error likely had a substantial impact on trial outcome and was not harmless. District court plainly erred in permitting evidence under Fed.R.Evid. 609(a)(1) beyond simple fact of convictions of aggravated battery; gov't should not have presented evidence that the other crimes involved box cutters or similar weapons.

State Petitioner Gets Hearing on Whether He Asked His Lawyer to Appeal

Clayton v. Ward, 2009 WL 2462362 (8/13/09) (unpub'd) - Remand for an evidentiary hearing on whether the petitioner asked his lawyer to appeal. The d. ct. was wrong to reject the claim on the ground that the petitioner did not have any meritorious appeal issues. The merits of the appeal don't matter. A defendant's ability to file his own notice of appeal also doesn't matter, contrary to what the state court thought. The state's arguments as to why the petitioner's assertion that he requested an appeal is incredible are factual contentions best addressed by the d. ct. after holding a hearing.

OK for Court to Reject Plea Agreement

U.S. v. Lechner, 2009 WL 2480772 (8/14/09) (unpub'd) - The d. ct. did not abuse its discretion when it rejected a plea agreement due to the defendant's failure to admit her intent to assault the victim. The court properly understood the defendant to be refusing to admit all the essential elements. Instead of getting probation under the plea agreement, the defendant got 5 years after a bench trial. The d. ct. did not commit plain error in advising the defendant about her right not to testify when she first indicated she wanted to testify. The d.c t. correctly told her the government had the burden to prove all the elements beyond a reasonable doubt. This did not mislead her into thinking her testimony was not necessary to establish her self-defense defense. The d.ct. correctly told the defendant her failure to testify would not impact its verdict. It did not improperly inject itself into a dispute between the defendant and her attorney about trial strategy, [although the fact that defense counsel asked the court to advise the defendant about her rights regarding testifying certainly implied there was such a dispute].

Useful Case for Excluding Opposing Expert

Milne v. USA Cycling, Inc., 2009 WL 2430642 (8/10/09) (Published) - If you want to keep an expert out, this case has some somewhat useful language requiring the expert's reasoning and methodology to be reliable.

Life Sentence for Drug Defendant Affirmed; Speedy Trial Act, Other Arguments Rejected

U.S. v. Williams, 2009 WL 2462351 (8/13/09) (Published) - The d. ct. did not abuse its discretion when, upon remand from the 10th due to a Speedy Trial Act violation, it dismissed the indictment without prejudice, rather than with prejudice. The seriousness of the offense---possession of cocaine with the intent to distribute that carried a life sentence in light of the defendant's priors---and the lack of: prejudice to the defendant [the 5 years to challenge his priors had already passed before the delay]; evidence of government intentional delay or pattern of neglect; and the defendant's assertions of his speedy trial rights until after the time limit had passed, justified a without-prejudice dismissal. The failure to hold an evidentiary hearing, if error, was harmless because the d. ct. would have dismissed without prejudice even if it held a hearing.

The defendant could not demand the production and questioning of a CI on the grounds that the CI's lies resulted in the search warrant when he had not made the requisite substantial preliminary showing that the officer had intentionally or recklessly lied on the warrant affidavit. The defendant's sworn assertion that he had never sold cocaine to the CI and the affiant's prior lying did not cut the mustard. The defendant's assertion did not undermine the officer's, as opposed to the CI's, credibility. The defendant had to show the officer knew the CI was lying. And the officer's prior lying did not pertain directly to this case and was not "sufficiently pronounced or ubiquitous." [sufficiently ubiquitous?]. Despite the defendant's contradicting testimony, the officer's claims that the defendant's confession was voluntary supported the d. ct.'s finding to the same effect. There was no Brady problem with the court's refusal to order turning over the Internal Affairs file of the officer for in camera review. The defendant did not make a "plausible showing" of material evidence in the file and other witnesses established the defendant's guilt. Any error in restricting cross of the officer regarding his lying in another case was harmless beyond a reasonable doubt, in light of the other evidence. The life sentence was not cruel and unusual because the 10th has upheld a life sentence for a 1-time cocaine offender.

Hearing Ordered for Capital Habeas Petitioner Troy Davis on Innocence Claim

In Re Davis, 2009 WL 2486475 (8/17/09) - An order that was unusual for two reasons: (1) it was issued in the summer; and (2) it dealt with an original habeas filing, which for almost 50 years the tens of thousands of such petitions have always resulted in summary denials. The Court (Stevens, Ginsburg and Breyer plus at least two of Kennedy, Alito and Roberts) (Sotomayor did not vote) transferred the famous Troy Davis case to the Georgia federal district court to "receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence." The Court did not explain the ruling any further. Stevens, joined by Ginsburg and Breyer explained in a concurrence that the petitioner might be entitled to relief, despite AEDPA's stringent standards, because (a) it might be unconstitutional to prohibit relief for a capital defendant who has proven himself to be actually innocent; (b) maybe AEDPA doesn't apply to original habeas petitions in the S. Ct.; and (c) AEDPA might have an exception for actual innocence claims. Stevens pointed out that so far no court had conducted a hearing to assess the reliability of the seven prosecution witnesses who have recanted and the witnesses who point to the state's principal witness as the shooter. In dissent, Scalia, joined by Thomas, doesn't see the point of the transfer because the petitioner could not be entitled to relief. You can only get relief under AEDPA based on "clearly established" S. Ct. law and the S. Ct. has never said you can get relief based on actual innocence. And, besides, courts and parole boards have already looked at the new evidence and have turned Mr. Davis down.

And, Sotomayor is now the Justice for matters coming out of the Tenth Circuit.

United States v. Burgess, ___ F.3d ___, 2009 WL 2436674 (10th Cir. 2009).
Known Hell’s Angels’ motor home stopped for expired plate on trailer. A drug dog alerts, cops smell pot, defendant (D) says can’t search--get a warrant. Cop enters anyway and finds pot and cocaine, sees a laptop, D says pot is his. D is arrested. Cops get warrant to search entire motor home (alleges that drug dealers keep photos of associates!). Affidavit incorporated into the warrant outlines all sorts of drug stuff, and “computer records.” In executing warrant cops seized two hard drives and laptop. Agent used a preview function as the hard drives were being quick copied to look for fotos of drugs and money, and saw a foto of child sexual abuse. He immediately stopped looking and got a new warrant to search for child SA. D tried on 2 counts of possessing child porn, a number of fotos come in to evidence to which he objects, he is convicted, objects to GL, is sentenced to 180 months.
1. Suppression: 10th ducks deciding whether search of the hard drives could be incident to D’s arrest for drugs, thereby obviating need for warrant and justifying what D claims was an overbroad warrant. It signals that it might just buy the government’s argument that a computer is no different than a suitcase that may be searched incident to arrest, but notes that Gant changes the landscape to some extent.

Warrant not overly broad though a close question. There was sufficient nexus between and context for the drug trafficking crime being investigated and search of computer records. Heavy emphasis placed on executing officer’s understanding of the search being limited to drug info. Regarding scope and the necessity of a computer search strategy being included in the warrant in order to guard against uncovering of irrelevant material: court distinguishes Carey and reminds that the inquiry is fact intensive. Dancing around it, the court largely rejects requiring a search strategy being spelled out ahead of time, but it might depend on case.

Finally, even if warrant was deficient, Leon good faith would allow the evidence in. And, no plain error in searching the hard drives after the warrant expired. Probable cause had not expired.

2. Evidence: 16 images beyond the 4 to which D stipulated were admitted. D’s defense was that he did not know the stipulated (4) images were on his (first) hard drive. Government could admit the 4 additional images with text that were from the second hard drive of the same child as in the 4 stipulated to images under 404(b) to show inferentially that D took the stipulated 4 pictures and knew they were on his drive. The evidence does not need to be vital to the government’s case to withstand a 403 balancing. The remaining additional 12 images, though a closer call (especially the sheer number of images), were admissible to impeach testimony of girl’s guardian, D’s friend, who said that the girl was under her care at all times and D could not have taken the pictures.

3. Sentence: Two point reduction under USSG Sec. 2G2.2 (b)(1) for receipt and non-trafficking in child porn did not apply to D since he was convicted of transporting porn over state lines.


United States v. Charles, ___ F.3d ___, 2009 WL 2436663 (10th Cir. 2009).
Reasonable suspicion, if not probable cause to detain and search defendant who scuffled with police as he pushed them on a stair well. Cops found a gun in his waistband.

Defendant, sentenced as a career offender, challenged characterizing as a crime of violence his conviction for a walkaway from a halfway house. Case remanded for re-sentencing in light of Chambers, for the district court to analyze whether that conviction qualifies as a crime of violence.

Civil Rights Case Dismissed Against Officer Who Killed Motorist While Chasing Gas Thief

Green v. Post, 2009 WL 2422762 (8/7/09) (Published) - The 10th explores the parameters of substantive due process, which requires shocking of the conscience to allow relief, and accidents caused by pursuing officers.

In this case, the officer, while trying to catch up to someone who had stolen $ 30 worth of gas, sped 20 mph above the speed limit through an intersection, without having engaged his emergency equipment, when the light was yellow, and ran into someone turning left at that intersection, killing the driver. The 10th engaged in much discussion about the factors involved, including what crime the suspect had allegedly committed and whether the officer had time to deliberate. The 10th found this case to be in the middle range between cases where no deliberation is possible and therefore intent to harm must be shown for relief and a case where deliberation is possible and deliberate indifference is sufficient for liability. The plaintiffs had to show conscious, deliberate indifference to an extreme risk of very serious harm to the plaintiff; "extreme" meaning so outrageous as to shock the conscience. The facts did not meet that standard. And, in any event, it was not clearly established the officer violated due process because some case law indicated only acting with an intent to harm would amount to a constitutional violation.

"Hunch" That Civil Rights Plaintiff Had More Info Did Not Provide Probable Cause to Arrest

Manzanares v. Higdon, -- F.3d --, #07-2156 (10th Cir. 8/10/09) - Albuquerque police officers went to Manzanares' home to get info re: an acquaintance of his that they suspected had committed a reported rape. Manzanares invited them in, gave them some info, then asked them to go. Instead they handcuffed him. He later told them he would show them where the acquaintance lived. Officers loaded him in handcuffs in the squad car, drove him to the suspect's home, and detained him in the car there for more than three hours.

The COA finds unreasonable the officers' excuse for failing to terminate the consensual encounter and leave--that they reasonably suspected Manzanares was obstructing an officer. Officers' unsubstantiated hunch that Manzanares knew more than he was saying did not constitute probable cause. Officers also lacked probable cause to detain Manzanares as a witness to prevent him from alerting the acquaintance of the investigation. Any reasonable officer would have known probable cause was needed to stay in Manzanares' home after he withdrew consent. The COA concludes Manzanares was arrested without probable cause while handcuffed and confined in the squad car outside the friend's home. Manzanares clearly established his constitutional rights were violated and no reasonable jury could have concluded otherwise. Case is remanded for entry of judgment for Manzanares and a new trial on damages.

Treaty Hunting Rights Not A Defense to Felon-in-Possession Charge

US v. Fox, No. 08-2190, 7/29/09 - Defendant, a Navajo with prior felony convictions, was found in possession of a shotgun and rifle on the reservation. He claimed that the treaty establishing the reservation conferred on him the right to hunt there with firearms, and that 18 USC § 922(g)(1), which generally prohibits firearm possession by convicted felons, did not apply to him because there was no clear evidence that Congress had actually considered the effect the statute would have on his treaty right. The district court denied defendant’s motion to dismiss and precluded him from raising this defense. On appeal following a conditional plea, the 10th affirmed. It agreed that the treaty did confer an individual right to hunt with firearms, but defendant’s own actions divested him of that right, and the treaty itself envisioned that Navajos who committed crimes on the reservation would thereby lose certain treaty rights.

6-Month-Old Info in Warrant "Refreshed" by Trash Contents

US v. Timley, No. 08-3160, 7/30/09 - Denial of motion to suppress evidence seized during execution of a search warrant affirmed. Defendant sold small amounts of pot to a snitch. Six months later, cop does a trash pull from the can in the alley behind defendant's house and finds pot residue and paraphernalia. Based on that, cop gets warrant authorizing the seizure of just about anything and finds, among other tings, crack cocaine. Held - the warrant was overbroad in some respects, but what was left after excising those parts established probable cause; the information in the affidavit was not stale because it was refreshed by what was found in the trash pull.

Certain Aliens Who Enter Without Inspection Are Ineligible for Status Adjustment

Herrera-Castillo v. Holder, 2009 WL 2217519 (7/27/09) (Published) - An alien who has entered without inspection and remained in the U.S. for more than a year is ineligible for adjustment of status, absent a waiver, such as a hardship waiver. The 10th interprets the relevant statutes which appear to make such an alien both eligible and ineligible to mean that those who are specifically referenced as inadmissible are ineligible but others might still be eligible. That's about as well as I can explain it. Sorry. The 10th applies familiar rules of construction that a statute should not be read to render "nugatory" part of it and specific statutes govern over general ones.

Malicious Prosecution Suit Reinstated

Miller v. Spiers, 2009 WL 2219256 (7/27/09) (unpub'd) - In a § 1983 case, the 10th holds the allegations were sufficient so far to support a malicious prosecution claim. The plaintiff can proceed on such a claim on a charge-by-charge basis, even though he pleaded guilty to attempted evidence tampering charges in the relevant indictment. The record did not yet indicate whether the murder and kidnaping charges were dismissed because of the plaintiff's attempted tampering, in which case the claim may be precluded. The record also did not provide a definitive answer whether there was probable cause for the dismissed charges. The statute of limitations did not prevent continuation of the lawsuit because the dismissal of the charges ---"the favorable termination"---occurred within 3 years of the suit's filing. So the 10th vacates the grant of summary judgment to the defendants.

Skipping Formal Revocation Hearing OK'd

U.S. v. Shidler, 2009 WL 2231669 (7/28/09) (unpub'd) - It was okay to skip a formal revocation hearing, even though the defendant himself never admitted the revocation petition's allegations, because the totality of the circumstances indicated the defendant admitted guilt. The defendant, who was an attorney, remained silent as his lawyer indicated he admitted to the allegations and the court announced it was moving on to the dispositional hearing and later the defendant personally made statements essentially admitting guilt.

Parole Agreement Authorized Search of Parolee's Car Even After Arrest of Parolee for Violation; Statement Voluntary Despite Shackles

U.S. v. Cordova, 2009 WL 2351618 (7/31/09) (unpub'd) - The defendant's parole agreement remained in effect after he was arrested for a parole violation, thus justifying a parole search of his car based upon reasonable suspicion. Reasonable suspicion was established by double hearsay that he was using drugs plus a positive test for cocaine use. An officer's lies about the strength of the evidence against the shackled defendant [e.g., many other people made statements incriminating him], and his threat of federal prosecution and statements that lack of cooperation would lead to a harsher sentence did not render involuntary the defendant's subsequent statement. The interrogations did not last long, they took place in an office and there was no "promise of leniency." Despite a state contract to provide counsel to parolees at parole violation hearings, the interrogation did not violate the defendant's right to counsel, because he had not yet been formally charged. The d. ct. did not violate the Confrontation Clause by limiting cross of a key prosecution witness to open criminal charges against her and not her past criminal history.

District Court Did Not Abuse Discretion in Limiting Cross Examination of Officer

U.S. v. Beltran-Garcia, 2009 WL 2231667 (7/28/09) (unpub'd) - Cross-examination of an officer, whose credibility was important, concerning an unrelated prior misrepresentation of the extent of consent given to search a house and the omission in his report on the incident of material facts was admissible under F. R. Evid 608(b). But the court did not abuse its discretion in precluding that cross on 403 grounds, since there was some danger the cross might lead to evidence of the officer's bad collateral behavior, [e.g. the officer's assault on the arrestee], despite defense counsel's promise not to do so. The officer's testimony about his credentials did not hold himself out as a model officer so as to allow evidence to correct such an impression.

The 10th held the cross restriction did not deny the defendants' right to confrontation because the defendants could have crossed on other matters, e.g. inconsistencies, that would have called the officer's credibility into question. I don't recall ever seeing before upholding a cross restriction on the grounds of what other things counsel could have crossed on when counsel didn't actually cross on those things.

The sentence of one of the defendants is reversed because the court never afforded the defendant the opportunity to allocute. The remedy is reversal even when the defendant does not object.

Former Qwest CEO Receives New Sentencing for Insider Trading Conviction

U.S. v. Nacchio, 2009 WL 2343716 (7/31/09) (Published) - Once again the 10th spends more time and energy on the former Qwest CEO than on all of our clients combined. 59 pages this time. He prevails on guideline and forfeiture questions and in the process creates law that could be relevant to our lowly clients.

The 10th holds that the gain from insider trading that determines the offense level should be based on what the failure to disclose negative information helped the defendant to earn, not the net profits from selling stocks before the information leaked. A lot of the net profits were the result of market forces that had nothing to do with the offense. So, the d. ct. needed to try to figure out what the stocks would have sold for if buyers knew about the negative information.

The most important lesson is that the offense level should be determined based on the culpability of defendants, not happenstance unrelated to culpability. The 10th notes that drug defendants get stuck with high offense levels based on a drug amount they are not aware of and bank robbers get offense levels based on the coincidence of how much money is at the bank at the time. But the 10th says that's not as unfair a situation as with the poor insider trader who is engaging in a lawful activity in an unlawful manner. Also of some relevance, the 10th relies on the notion that guideline commentary must be read in light of the language and intent of the actual guideline and civil case law can be helpful in interpreting the guidelines. The 10th also overturned the forfeiture based on gross proceeds. It should have been based on net proceeds following the subtraction of direct costs. The 10th holds Congress would have used a particular phrase it used elsewhere if it wanted the gross-proceeds approach to apply to insider trading.

PC to Arrest Not Supported by "Inherently Innocuous Behavior"

Sherhouse v. Ratchner, 2009 WL 2343711 (7/31/09) (Published) - In a civil rights case, the 10th holds one of the plaintiffs was entitled to judgment as a matter of law. The Albuquerque officers did not have probable cause to arrest a Hispanic teenage girl who was seen near the neighborhood of a robbery where the culprit was supposed to be a black female. She was seen giving a sweater to a black teenage girl who was supposedly identified by witnesses as the robber [she wasn't]. Association with a suspected criminal is not enough. While the officers suspected she gave the sweater to her companion to conceal identity, there were many innocent explanations. Here's a quote that we can use: "Where an officer observes inherently innocuous behavior that has plausible innocent explanations, it takes more than speculation or mere possibility to give rise to probable cause to arrest."

But no dice for the companion. There was probable cause to arrest her based on her location and the supposed identifications [disputed by some of the alleged identifiers and one officer wrote in a report that no identifications were made]. It was not reversible error to give a jury instruction that indicated the arrest could be lawful where the officer was reasonably mistaken about the existence of probable cause. While the instruction was not completely accurate because a reasonable mistake about the law would not justify an arrest, there was no evidence in this case the officers were mistaken as to the law, only as to the facts. It was okay to refuse to instruct the jury that transportation to a police station without probable cause violates the Fourth Amendment. The instruction would have been okay, even though it did not take into account that a voluntary transportation would not have implicated the 4th Amendment, since there was no dispute that the transportation was involuntary. But an instruction that arrest without probable cause was unlawful sufficiently covered the gist of the proffered instruction, given the officers' concession that the transportation was the equivalent of an arrest.