Witness Retaliation Conviction Affirmed

United States v. Wardell, ___ F.3d ___ 2009 WL 2998939 (10th Cir 2009)

Defendant convicted, along with co-defendants, of retaliation and conspiracy to retaliate against a witness (witness was beaten in a holding cell) who had earlier testified against defendant in tax fraud case. Witness was beaten by two others who had not been involved in tax case. Defendant did not participate (nor did a fourth co-defendant, Pursley, who was, like defendant, charged and convicted in the tax case).

1. Sufficient evidence of conspiracy and interdependence: defendant had earlier written two letters to witness that witness interpreted as warnings not to testify--evidence of a motive to conspire to retaliate, which increased after witness testified. The two beaters were not involved in tax case and had no motive, therefore a jury could infer they conspired with those who had a motive to retaliate. Co-defendant Pursley’s attorney writted the two beaters to court to testify in the tax case, but they never testified. It could be viewed as a ruse to get them in contact with the witness in a holding cell so they could beat him. Pursley and defendant were close friends. On the ride to the courthouse, another prisoner saw defendant, Pursley, and one of the two beaters whispering to each other the entire one hour trip–Pursley identified the beater as “a friend.” During the beating, one of the beaters said to witness that he knew witness had testified against Pursley. During the beating defendant, who was also in the cell, made a lot of noise to cover the sound of the beating. Witness testified defendant called out after the attack that he deserved what he got.

2. No abuse of discretion (and no constitutional violation) in making defendant wear stun belt at trial: There is a danger of prejudice if a defendant is made to wear a visible stun belt. Here, however, court made required individualized assessment of safety necessity, and adequately minimized visibility of belt. Court rejects under plain error standard defendant’s argument that psychological impact of stun belt being possibly activated affected his 6th Amendment rights.

3. No abuse of discretion denying severance motion: Law of the case applies to this issue rejected by Court in Pursley’s appeal. No evidentiary and culpability disparities between defendant and Pursley.

4. Sentencing: 8-=level upward guideline adjustment for obstructing justice with injury properly applied–the conviction necessarily required a finding of facts required for the adjustment. No error in applying organizer or leader upward adjustment. There was evidence of defendant’s organizing, even if Pursley was more responsible for organizing the assault. No need to review evidence of leadership.

5. Defendant’s subpoena requests and violation of Rule 17's ex parte provision. District court asked defendant in the presence of the government (instead of in a private ex parte manner) about the need for witnesses defendant wanted to subpoena. Court states that the ex parte procedure is required, but it ruled in Pursley’s case that he had waived that protection by volunteering information in front of the government and at any rate by not objecting. While defendant largely operated in tandem with Pursley at trial, Court could not say he waived the protection. But it was an untimely objection and still reviewed under the plain error standard. Because he could not show how his substantial rights were prejudiced, he cannot prevail in spite of the error.

Warrant Lacked PC, But Officers Searched in Good Faith; Improper Gang Testimony Harmless

US v. Roach, -- F.3d --, 2009 WL 2989182 (10th Cir. 9/21/09) - search warrant affidavit failed to supply probable cause for search because it relied on outdated information regarding Mr. Roach's gang connection and failed to provide a nexus between him and the address searched. However, officers executed it in good faith, so it's all good. There was sufficient evidence of defendant's knowledge of and access to the gun, ammunition, and crack cocaine to support his convictions. While the district court improperly allowed police officer to testify as gang expert without making required reliability findings, the error did not substantially affect the verdict and thus was harmless.

Career Offender Guideline Amendment Not Retroactive

US v. Bronson, No. 09-3152, 2009 WL 2965199 (10th Cir. 9/17/09) (unpublished): Amendment 709 to the United States Sentencing Guidelines, which amended the career offender guidelines, does not apply retroactively and therefore cannot be a basis for relief under 18 U.S.C. § 3582(c)(2).

Entrapment Defense Fails

US v. Fulton, No. 08-3261, 2009 WL 2952145 (10th Cir. 9/16/09) (unpublished): Mr. Fulton was enticed by a former prison-mate turned CI into participating in drug deals. Mr. Fulton raised an entrapment defense. The court allowed rebuttal evidence that the CI had seen Mr. Fulton obtain 9 ounces of cocaine without the CI’s prior knowledge or assistance. Mr. Fulton objected as irrelevant and unfairly prejudicial. The Court found that there was no abuse of discretion in admitting the testimony, especially since a limiting instruction was given. Additionally, the evidence was sufficient to support the convictions.

No Double-Counting in Assessing Enhancements in Stolen Firearms Case

US v. Blackbourn, No. 08-5165,2009 WL 2952146 (10th Cir. 9/16/09) (unpublished): when determining the sentence for possession of a stolen firearm, the trial court did not err in enhancing the defendant’s base offense level for the fact the firearm was stolen and for possessing the firearm in connection with another felony. The fact that he pled guilty to possessing a stolen firearm did not prevent the trial court from applying the enhancement for possession of a stolen weapon because USSG 2K2.1 applies to a number of firearms offenses, some of which involve stolen guns and some that do not. Application of the enhancement is the way the guideline distinguishes between the two types of offenses. Thus, it was not doublecounting. It was also not double counting to enhance the base level for the fact that he possessed the stolen firearm in connection with the burglary at which the firearms were stolen.

Capital Petitioner's Claim that Attorney Failed to Investigate and Proffer Mitigating Evidence Rejected

Wackerly v. Workman, ___ F.3d ___, 2009 WL 2940045 (10th Cir. 2009).
Upholding the death sentence for a typical, impersonal, rural Oklahoma murder, the 10th holds that in spite of counsel’s failure to investigate and present certain mitigating evidence during death penalty phase of state trial, there was no “reasonable probability” that the evidence would have effected the outcome by changing the position of at least one juror (Okla. requires a unanimous death verdict).

The state’s case regarding guilt and the two aggravators–crime committed in a manner to avoid detection and the defendant posing a continuing threat–was particularly strong, while the mitigating evidence not presented was particularly weak. Evidence of petitioner’s substance abuse problems was double-edged–a jury could have faulted him for his failure to effectively address the problem, and could have used the evidence against him, especially in this case where the jury had not already heard of a substance abuse problem earlier in the case. Plus, he did not allege that drugs clouded his judgment at the time of the crime. Evidence of his psychological problems where he experiences mood swings from happy to rage and has trouble with controlling impulses was likewise double-edged. A jury might conclude he presents a continuing threat. A notation in file made a decade earlier by a doctor treating him for venereal warts that he might be “semi-retarded,” as well as other various medical records potentially relevant to brain functioning, were undercut by his current expert who tested him as functioning at an above average intelligence. Other evidence not presented was merely cumulative to evidence already presented.

Regulaton Barring Reopening of Immigration Proceedings for Previously Romoved Persons is Valid

Rosillo-Puga v. Holder, ___ F.3d ___, 2009 WL 2929828 (10th Cir. 2009).
Regulation, 8 CFR 1003.23(b)(1), barring reopening of deportation on person previously removed, is valid, and deprives immigration judge (IJ)of jurisdiction to rule on motion to reopen. The majority of the COA panel rejects any reading of the regulation that would allow review: the bar still applied to those like petitioner who were not “currently under removal proceedings” because already removed; the more general reconsideration reg that allowed for reconsideration “at any time” did not override the more specific post-removal bar; an IJ lacks authority to sua sponte consider a petitioner’s post-removal motion to reopen (petitioner argued he presented an extraordinary circumstance: a circuit decision, after petitioner’s removal and in another individual’s case, held petitioner’s state felony as not a removable crime of violence); the regulation comports with the statute. Lucero dissents, reasoning that the regulation is in contravention to the statute which allows reconsideration even after removal, and that an IJ has jurisdiction to sua sponte consider a motion to reopen.

Capital Appellate Attorney Positions

The Federal Public Defender for the District of Colorado has posted an announcement for experienced appellate attorneys to handle appeals in the Tenth Circuit. Two positions are available.

According to the announcement, the bulk of the caseload would be capital habeas proceedings (primarily section 2254) from the district courts in the Circuit. Appointments in the cases will be made by the Tenth Circuit without prior involvement of the Federal Public Defender Office in the underlying habeas proceedings. It is expected that appointments will be solely for the purposes of appeals before the Tenth Circuit and any subsequent proceedings, if any, before the Supreme Court. Due to the differing rates of capital prosecutions in the states and districts of the Tenth Circuit, it is anticipated that these appeals will arise more often from Oklahoma than from elsewhere in the Circuit. The attorneys will be Assistant Federal Public Defenders officed in Denver, Colorado, and will function as part of the existing Appellate Division.

It is strongly preferred that applicants have significant experience both in appellate representations and in capital habeas matters. Further, with respect to capital habeas experience, section 2254 experience is preferred over section 2255 experience. Other related experience, however, may be considered. Applicants must be team oriented, exhibit strong writing and oral argument skills, and possess a true commitment to criminal defense generally and death penalty defense in particular.

Applicants must be licensed by the highest court of a state, federal territory or the District of Columbia, and be a member in good standing in all courts and jurisdictions where admitted to practice. Applicants are subject to a background security check. Salary is commensurate with experience.

Qualified individuals may apply submitting a letter of interest, a resume, and a representative writing sample by the close of business on September 25, 2009, to Deanne Bader, Financial Administrator, Office of the Federal Public Defender, 633 17th Street, Suite 1000, Denver CO 80202. The FPD is an equal opportunity employer.

Shady Pharmacist's Conviction Affirmed; Flunky's Conviction Reversed

US v. Lovern, 2009 WL 2871538 (10th Cir. Sept. 9, 2009) (published):
Two employees of a shady internet pharmacy, Red Mesa, went to trial and were convicted of charges relating to a conspiracy to dispense drugs in violation of the Controlled Substances Act after the principal owner-operator of the pharmacy pled guilty. The Court affirmed the conviction of one defendant, Jerry Lovern, and reversed the conviction of the second employee, Robert Barron.

The principal owners, Mr. and Mrs. Hilst, began the business by submitting false information in their application to the Kansas Board of Pharmacy and the DEA. Their pharmacy obtained customers solely through two websites run by companies based in Costa Rica and Seattle. Customers submitted questionnaires and asked for prescriptions. The questionnaires were reviewed by doctors in the US and Puerto Rico, who almost invariably granted the prescriptions without ever seeing the patients or verifying the information. The website companies then filled the prescriptions through participating pharmacies, including Red Mesa. The business was lucrative; Red Mesa received more than $700k in its 8-month life. Mr. and Mrs. Hilst handled the business operations; Jerry Lovern was the principal pharmacist who filled the prescriptions, and Robert Barron was a high school dropout who worked as a computer technician, printing the labels for the prescriptions.

Lovern raised five challenges to his convictions: 1) they were contrary to the Controlled Substances Act and Gonzales v. Oregon;; 2) insufficient evidence; 3) denial of his expert witness; 4) 21 USC 841(a) was unconstitutionally vague as applied to him; and 5) he should have gotten his requested jury instruction on entrapment by estoppel. The Court rejected all the arguments and affirmed. Contrary to Mr. Lovern's characterization, the government did not attempt to prove that filling a lawful prescription via the Internet is illegal; rather, the government argued that issuance of a prescription based solely on an on-line questionnaire, without an existing doctor-patient relationship, exam, verification, or any further contact, fell outside the usual course of medical practice. The government proved that Mr. Lovern knew this was going on and still filled the prescriptions. The Supreme Court's Gonzales v. Oregon decision is not applicable because no interpretive rule was involved; the government proved its case the old-fashioned way, with witnesses and evidence. The insufficiency argument was quickly addressed, and dismissed, with the Court noting that Mr. Lovern himself testified that generally doctors wrote prescriptions for patients they had seen. Several other witnesses also testified as to usual medical practice. As to his expert witness, Mr. Lovern had unfortunately waived his right to object when he agreed that his expert was not qualified. The Court found no unconstitutional vagueness in the CSA as applied to Mr. Lovern, based again in part on his own testimony that he knew he had a legal duty to fill only prescriptions issued in the usual course of medical practice and that these prescriptions were not being prescribed in that manner. Finally, he was not entitled to an entrapment instruction; the facts that the pharmacy had a DEA license for a time and was investigated without telling Mr. Lovern he might be breaking the law did not affirmatively mislead him in such a way as to implicate due process.

Mr. Barron's convictions, on the other hand, were reversed because the government's evidence failed to include direct or circumstantial evidence that he knew the prescriptions were being improperly filled. Instead, the trial evidence showed the opposite: that "rogue" pharmacies often "use persons with limited or no knowledge" of standard pharmacy practices to facilitate their work. Mr. Barron, with only a 9th-grade education, a learning disability and lacking prior experience or training other than a 15-minute phone call with company representatives, fit the bill. Additionally, he did only menial computer tasks, without any communication with patients or doctors. Although there was evidence from which a jury might infer that Mr. Barron knew "something wasn't right" with Red Mesa, the majority concluded that such evidence did not show that Mr. Barron knew that the prescriptions were being filled contrary to normal medical practice.

Judge O'Brien dissented, and would have affirmed Mr. Barron's convictions too.

Suppression Properly Denied

US v. Harris, 2009 WL 2873178 (10th Cir. Sept. 9/2009) (unpublished): Warrant to search for drugs was sufficient to support probable cause; out-of-date information was sufficiently updated with details of recent complaints of drug activity at the house and controlled buys, including one within previous 48 hours. Fact that state law requirements were not observed did not require suppression; "the fact that the arrest, search, or seizure may have violated state law is irrelevant as long as the standards developed under the Federal Constitution were not offended."

Capital Habeas Representation Meetings

According to an announcement from SueAnn Fitch, CJA Supervising Attorney for the Tenth Circuit, in late October mid-day meetings will be held in Oklahoma City (11:30a-, Petroleum Club, 100 N Broadway , 35th Floor, Tuesday, 10/27/09)and Tulsa (11:30a-, Page Belcher Courthouse, Jury Assembly Lounge, 333 W. Fourth St , Wednesday, 10/28/09) to explore capital habeas representation issues and training in the 10th Circuit. These meetings are being held in Oklahoma because the vast bulk of 10th Circuit capital habeas cases are § 2254 actions arising out of the Oklahoma State courts. Nonetheless, all CJA attorneys interested in this very challenging work are welcome to attend. The event is free and luncheon will be served; however, there is no funding available to assist with travel costs.

At 86, Oklahoma’s death row is by far the largest in the Tenth Circuit. (The remaining states combined have fewer than 20 people on death row.) The Capital Habeas Unit (CHU) of the Western Oklahoma FPD presently represents twenty-five petitioners at various stages of habeas litigation - less than half of the qualified clients. A small cadre of CJA attorneys have been representing the remainder since 1995. Many are sole practitioners who shouldered this responsibility without the assistance of co-counsel. The few attorneys who undertake this demanding work are simply not enough -- particularly with 63 petitions pending at various federal court levels just from in Oklahoma.

Tenth Circuit Judges Tymkovich, Gorsuch, Holmes, Senior Circuit Judges Holloway and Seymour, Chief Circuit Judge Henry, and judges from federal district courts of Oklahoma are expected to attend to share their perspectives on the need for additional attorneys to provide high-quality representation at the federal appellate and district levels. Federal Public Defenders and CJA attorneys that have all represented or are currently representing death row inmates will share their thoughts. Ideas for in-circuit training programs will be explored.

If you will attend either meeting, please RSVP immediately to the appropriate number: Oklahoma City at (405) 609-5400, or Tulsa at (918)699-4795. Food will be ordered based on responses, so please do not RSVP unless you or someone else from your firm are certain to attend. Thank you.

New Tenth Circuit Rules Proposed; Public Comments Solicited

The Tenth Circuit has posted proposed local rules changes for 2010. The comment period for review of those rules runs from August 24, 2009 until October 20, 2009. A memo summarizing the proposed changes is available here. A redlined draft of the proposed changed rules for the both the Federal Rules of Appellate Procedure and local rules is available here.

Minimal Prison Library Does Not Justify Equitable Tolling

Garcia v. Hatch, 2009 WL 2668905 (8/28/09) (unpub'd) - The New Mexico Correction Department's "Legal Access Program" that closed all prison law libraries, offers a few books and form packets and provides staff to help fill out the forms, was not inadequate enough to justify applying equitable tolling to excuse filing the 2254 petition outside of the statute of limitations.

Tenth Applies De Novo Review--Not AEDPA Standard--and Remands Two Capital Habeas Cases

Wilson v. Workman, 2009 WL 2623336 (8/27/09) (en banc) - An important and good en banc decision in the habeas world, although perhaps a trivial decision in your world. By a 7-5 vote [McConnell writing for the majority, Tacha, Briscoe, O'Brien, Tymkovich and Gorsuch dissenting], the 10th holds that de novo review, not the stringent AEDPA standard, applies to state court decisions that do not consider evidence the federal courts consider in light of the correct constitutional standard.

In these 2 death penalty cases, the Oklahoma appellate court refused to send an ineffective assistance ("IA") of counsel claim down to the trial court. Depending on how one interprets the state court decisions, the court either denied the IA claim without considering new IA evidence the petitioner presented [e.g. evidence trial counsel should have presented] or applied the state law that no evidentiary hearing need be held unless there is clear and convincing evidence of IA. If the appellate court did not consider the new evidence, then it had not "adjudicated" the claim the petitioner presented in federal court, which claim included the new evidence, and so the state court decision was not entitled to deference. If the appellate court applied the clear-and-convincing standard then it did not apply clearly established S. Ct. law that the defendant need only prove IA by a preponderance.

The dissents read AEDPA's "adjudication" of a claim language more broadly to include rejection of claims without considering all the evidence and questioned the majority's interpretation of Oklahoma's clear-and-convincing standard, suggesting it really was no different, or was more favorable to the petitioner, than the constitutional preponderance standard. The dissenters suggested certifying that state law question to the Oklahoma Supreme Court.

The majority remanded one case to the d. ct. for a federal evidentiary hearing, where the panel had previously decided, as reported here, that the petitioner had alleged enough, if proven true, to establish an IA claim The majority sent the other case back to the panel which had not addressed the merits yet.

Upward Variance for Embezzling Tribal Official Affirmed

US v. Bullcoming, No. 09-6010, 9/3/09 - Defendant, a tribal official entrusted with handling his district’s share of gaming revenue, pled guilty to one count of embezzlement in exchange for dismissal of other counts and agreed to substantial restitution. He received a two-level decrease for acceptance of responsibility. At sentencing, another tribal official testified on behalf of the tribe that defendant had never accepted responsibility for his actions in stealing from the tribe in a separate case prosecuted in tribal court, and the government argued that it would probably never be able to prove the full amount of restitution. Defendant objected to none of this. The district court varied upward from the top of the guidelines range of 18 months and sentenced defendant to 36 months.

Held - government did not breach the plea agreement, and there was no plain error, because 1) the tribal official, not the government, commented on defendant’s failure to accept responsibility, and the victim has the right to heard at sentencing; and 2) government did not breach agreement because its comments about restitution were in the context of offense level calculation; even if it did, defendant could not show prejudice. Finally, the district court did not abuse its discretion in varying upward.

PWID Crack Conviction Does Not Lead to Permanent Bar on Receipt of Fed Benefits

US v. Jacobs, No. 09-5021, 9/2/09 - Agreeing with the parties, the 10th holds that possession with intent to distribute cocaine base in not an “offense consisting of the distribution of controlled substances” within the meaning of 21 USC § 862(a), which permanently bars a person from receiving federal benefits upon a third conviction for such offense.

Fraud Defendant Improperly Denied Good Faith Defense Instruction

US v. Bowling, No. 08-6184, 9/3/09 - Defendant “cow farmer” was indicted for bank fraud for selling encumbered cattle under other people’s names and for not using proceeds from cattle sales to pay back his loan. At trial, he submitted a good faith defense instruction, based on evidence that his conduct was really just business as usual between him and the bank going back ten years. The district court declined to give the instruction. The 10th reversed the conviction because defendant was entitled to his theory-of-the-case instruction. In a fraud case, the defendant is entitled to a good faith instruction because general instructions on willfulness and intent are insufficient to “fully and clearly convey” the good faith defense to the jury. However, the defendant’s evidence must completely rebut all evidence that he intended to defraud. In this case, defendant’s evidence did just that.

Presence of Drugs Justifies Handcuffing Passenger

United States v. Albert, ___ F.3d ___, 2009 WL 2757038 (10th Cir. 2009).
Handcuffing of defendant passenger in vehicle stopped for illegal lane change did not amount to an arrest. The COA holds that in appropriate circumstances handcuffing is allowed for officer safety during a Terry investigation, if a reasonable person under the facts would determine the action appropriate. Before the cuffing the officer discovered illegal drugs and knew the driver had two outstanding warrants, thus elevating the danger of the situation.

Pat down search of defendant reasonable–there was evidence of a drug crime, and guns and violence are associated with drug crimes, justifying a pat down for officer safety. The officer found a tourniquet (not a gun or drugs). The COA ruled that while permissible at its inception, the frisk became intrusive when police seized the tourniquet. Nevertheless, that alone, and in combination with the cuffing, did not transform the detention into an arrest.

Remand for Capital Habeas Petitioner

Fairchild v. Workman, -- F.3d --, 2009 WL 2710320 (10th Cir. 8/31/09) - remand of Okla death penalty case for district court to determine whether to grant stay to permit Mr. Fairchild to return to state court to exhaust his unexhausted ineffective assistance of counsel claim. While Mr. Fairchild previously raised an IAC claim in state postconviction proceeding re: counsel's failure to present evidence of organic brain damage, it was much less specific and powerful than his federal IAC claim. Because he did not fairly present the substance of his federal claim to the state court, he did not satisfy the exhaustion requirement.

The state failed to prove that the Okla rule requiring that IAC claims generally be raised on direct appeal was adequately and evenhandedly applied. It therefore did not carry its burden of establishing that the state procedural bar was an adequate and independent ground precluding habeas relief.