I want to thank all the other research attorneys for the FPD-NM office. This blog is a group effort; no one person could keep it up alone!

Unpublished Decisions

U.S. v. Richard, 2009 WL 3367632 (10/21/09) (unpub'd) - An officer's opinion, based on his extensive experience, that individuals involved in drug activity typically keep evidence of that activity in their homes, is enough to establish probable cause to search a suspect's home. Evidence of continuous involvement with drugs over the course of a year and a half ending two weeks before the warrant issued was not too stale and established probable cause the suspect was a drug user in possession of a firearm.

Without any real discussion, the 10th holds the prohibition against habitual drug users possessing firearms did not run afoul of the 2d Amendment, even though the Heller Court did not specifically mention in dicta, as it did with respect to felons, that such a prohibition would be okay. No physical nexus is required between the firearm possession and the habitual use under 18 U.S.C. § 922(g)(3). It is enough that the defendant is an habitual user during a time period when the defendant possessed a firearm. The defendant need not be an "addict" as defined in DSM to be an habitual user. The statute was not vague as applied and there was sufficient evidence of the requisite nexus and the defendant's habitual [daily] use.

It was not a violation of due process for the officers to refuse to permit the defendant to tape the officers' interrogation. While, as the d. ct. found, the officers' conduct was "high-handed and arrogant" and, as the 10th says, the officers' conduct was "not commendable," they did not have the bad faith required to warrant dismissal of the case. Due process does not require complete good faith. Most troublingly, without the defendant's statements during interrogation, the government would not have been able to prove the defendant was an habitual user and the three officers who participated in the interrogation had three different versions of what the defendant said. Only one of those versions was especially incriminatory.

Akers v. Weinshienk, 2009 WL 3403183 (10/23/09) (unpub'd) - 28 U.S.C. § 455(b)(5)(i) required the judge to recuse herself because she was a defendant in the case. The error was not harmless because the judge dismissed the case on discretionary, not mandatory, grounds.

Supervised Release Violation Based on Failure to Complete Program Upheld

U.S. v. Metzener, 2009 WL 3366308 (10/21/09) (Published) - The district court reasonably interpreted the supervised release condition that the defendant "participate in a sex offender treatment program" to mean that the defendant had to substantially participate for the entire length of the program. After doing fine for almost 3 years of supervised release, 4 days before it was over, the defendant admitted to having viewed adult porn and having lied about it, which conduct violated his contract with the treatment program. That conduct was bad enough to justify revoking supervised release. The rule of lenity does not apply to the interpretation of supervised release conditions. The 10th concluded with a suggestion that district courts be more specific as to what they mean by "participate," e.g. by requiring that the defendant successfully complete the treatment program.

Tenth Addresses Issues of Waiver, Affirms Denial of Suppression Motion

U.S. v. White, 2009 WL 3381528 (10/22/09) (Published) - One defendant signed an appeal waiver that waived any suppression arguments except those raised below. Troublingly, the other defendant waived arguments not raised below because Rule 12(b)(3)(C) says a party who fails to raise an issue regarding a motion to suppress waives that issue. It was not clearly erroneous for the d.ct. to find that the officer had reasonable suspicion to believe the defendant pulled into the lane an unsafe distance ahead of a car in the same lane. Troublingly, the S. Ct. has clearly held "reasonable suspicion" is ultimately a question of law subject to de novo review. See Ornelas v. U.S., 517 U.S. 690 (1996). There was reasonable suspicion to continue the defendants' detention beyond what was necessary to issue the citation based on (1) the defendants' "unusual" nervousness; (2) their improbable travel plans [they had flown to Vegas, spent 4 days there, were driving to Indianapolis so one of them could go to work on Oct. 3 and then they were returning to Vegas on Oct. 4]; (3) one of the defendants had two prior drug-related incidents ["criminal history contributes powerfully"]; and (4) they were coming from a source city and going to a well-known destination point [of minimal significance]. Requiring the suspects to drive the car to the police station parking lot 10 minutes away for a dog sniff in the direction they had been traveling did not constitute an arrest requiring probable cause. The required drive was not highly intrusive and was done for the defendants' convenience.

Unpublished

US v. Ellis, No. 09-4006, 10/29/09 - 1) 2-level enhancement of felon in possession sentence because district court found that firearm was stolen appropriate where district court said nothing to indicate that it considered guidelines mandatory, hence no Booker violation; in any event, defendant admitted gun was stolen, and there is no scienter requirement that he be subjectively aware of that fact. 2) government did not breach plea agreement that it would recommend bottom end guidelines sentence where district court imposed top end sentence; government acknowledged its agreement in sentencing memo and remained silent at sentencing.

US v. Hernandez, No. 08-8076, 10/29/09 - sentence in dug conspiracy case based in part on a valid prior conviction was procedurally reasonable, where defendant asked district court to simply ignore the conviction but did not request a downward variance; court therefore had no duty to explain why it did not vary downward.

United States v. Griffith, ___ F.3d ___ , 2009 WL 3429767 (10th Cir 2009)
Defendant pleaded guilty to theft of government money arising out of her embezzlement of VA benefits as representative payee/fiduciary of the veteran. The Tenth held that the district court correctly calculated loss under the guidelines. The relevant conduct considered by the court must be related to the crime of conviction, and must be conduct that would constitute a state or federal offense. Accounting included direct losses and questionable expenditures from which defendant seemed to benefit more than the vet (they lived together and were married for a brief time). See case for how court determined, over D’s challenge, that these losses were proven by a preponderance (a reasonable estimate of loss is OK), and how they arose out of criminal conduct (her repeated acts of fraud were all part of a scheme) (it did not help that she was 35 years younger than the vet when they married).
The 10th reverses, however, the restitution order under the Mandatory Victim Restitution Act. Loss must be actual loss that arose out of the criminal conduct of conviction. The COA first determined that the funds retained their “public money” character when deposited into the veteran’s account–something unique to the interpretation of legislation and case law dealing with veteran’s monies’ exempt and non-exempt status. There was no proof that the veteran re-paid certain credit card debts incurred by the D with VA money, so that could not be attributed as restitution owed by the D. The government only proved that the directly diverted funds constituted a direct loss to the VA.
Garcia v. Holder, ___ F.3d ___ , 2009 WL 3430124 (10th Cir 2009)
Board of Immigration Appeals did not err in denying petitioner discretionary relief of voluntary departure or cancellation of removal. His guilty plea to battery some years earlier could not be clearly deemed a crime of moral turpitude (CMT), which would bar discretionary relief, because the plea did not clarify whether he admitted committing the act knowingly (CMT) or recklessly (not CMT). However, the alien has the burden of showing eligibility for discretionary relief and, in this case, petitioner had the burden of clearing up the ambiguity as to whether his plea was to reckless or knowing battery. Absence in the record of proof that he was convicted of a CMT is not sufficient proof.
United States v. Johnson, ___ F.3d ___ , 2009 WL 3429765 (10th Cir 2009)
A person forfeits his Fourth Amendment right to privacy in a storage unit when it is rented using a false identity. Defendant’s girlfriend, at his direction, rented the unit in the name of a person whose identification, credit cards, etc., were stolen the week before. Police contacted the crime victim in whose name the unit was rented, and the victim consented to the search of the unit. (!) Guns were in the unit. While D may have had a subjective expectation of privacy in the unit, it was not an expectation society would recognize as objectively reasonable. It is ultimately, per Katz, a value judgment. This unorthodox and fraudulent arrangement posed risks to the victim of the identity threat (as opposed to use of a pseudonym, in which there is no victim of ID theft); there is no expectation of privacy in contents of fraudulently purchased property. The court posits a host of reasons why society would not recognize as reasonable an expectation of privacy in this situation.
Hamilton v. Holder, ___ F.3d ___ , 2009 WL 3430121 (10th Cir 2009)
Review denied of Board of Immigration Appeals determination that petitioner, a permanent lawful resident, was ineligible for cancellation of removal because of conviction of an aggravated felony. Evidence, gleaned from a PSR, showed that the amount of loss in his mail fraud conviction (conspiring to burn a car for insurance proceeds) exceeded the $10,000 felony limit. Following the Supreme Court in Nijhawan v. Holder, 129 S. Ct. 2294 (2009) the COA held that the Taylor categorical approach does not apply to determining the circumstances of the offense conduct in a removal case, and court can look to PSR for facts. Although petitioner paid restitution under $10,000, the amount of loss to the victim was more.
Thompson v. Salt Lake County, ___ F.3d ___ , 2009 WL 3430758 (10th Cir 2009)
Affirming a grant of qualified immunity and summary judgment to defendants police agency and individual police officer in a case where police dog Chaos was set on a suicidal man, and police shot and killed the man. About ten seconds passed between when police encountered the dead man in his back yard and when they shot him.
The 10th holds that in this situation release of the dog was not use of deadly force–the ability to bite and hold are present in every release of a police dog. There was no evidence that the dog was improperly trained. Nor was release of the dog unconstitutional excessive force. The dead man had threatened his wife with a firearm, he had fled, was armed, and was in the neighborhood in the middle of the night.
Officers reasonably believed themselves in danger of death or great bodily arm from the dead man: the evidence was uncontroverted that during the brief encounter, he pointed the gun at the officers and police had ordered him to drop the gun. Although there was conflicting testimony about whether he had pointed the gun at himself in the brief moments before an officer fatally shot him, that does not diminish, in the short time frame here, the reasonableness of the police belief they or others were in danger. Police did not recklessly create the need to use deadly force by releasing the dog without warning and failing to negotiate with the dead man–police actions were reasonable in the circumstances. Because the COA determined that police did not exceed constitutional limits on use of force, the plaintiffs failure to train on how to handle suicidal people issue falls away. Plaintiffs state law claims are dismissed. Under Utah governmental immunity law, plaintiffs must show that police acted with malice, which they failed to do.

State Law Violation Not A Fourth Amendment Violation

Bowling v. Rector, -- F.3d --, 2009 WL 3416342 (10th Cir. 10/26/09) - state law violation related to execution of a search warrant - in this case, exceeding authority of a special ranger under Oklahoma law - did not violate the Fourth Amendment and thus was not actionable under § 1983. Summary judgment was properly denied with respect to claim that the scope of the search warrant was exceeded in violation of Mr. Bowling's constitutional rights.

Claim of Ineffective Assistance Waives Attorney-Client Privilege

US v. Pinson, -- F.3d --, 2009 WL 3417706 (10th Cir. 10/26/09) - denial of certificate of appealability on § 2255 claims, including claim that Mr. Pinson's Sixth Amendment rights were violated by district court order that his attorney produce an affidavit regarding claims of ineffective assistance of counsel. The attorney-client privilege is impliedly waived regarding communications related to IAC claims. The waiver should be no broader than needed to ensure the fairness of the proceeding. Any requirement of production of attorney notes, etc. should be carefully tailored to protect Sixth Amendment rights.

Court Can Resentence Defendant Who Had 11(c)(1)(C) Agreement Based on Amended Guidelines

US v. Cobb, -- F.3d --, 2009 WL 3418214 (10th Cir. 10/26/09) - reversal of district court ruling that it lacked authority under the amended crack guidelines to reduce Mr. Cobb's bottom of the guidelines sentence, which was imposed under 11(e)(1)(C). The sentence was "tied to the guidelines at every step." The final plea agreement specified the applicable guideline range and the parties negotiated the stipulated sentence to be a guideline range sentence. The sentencing court independently determined the applicable guideline range when it imposed the sentence. "It is simply unrealistic to think that the applicable guideline range is not a major factor (if not the major factor) in reaching a stipulated sentence. If we categorically removed Rule 11 pleas from the reach of § 3582, it would perpetuate the very disparity § 3582 and the retroactive application of Amendment 706 were meant to correct." Hartz dissents.

US v. Evanson, -- F.3d --, 2009 WL 3336094 (10th Cir. 10/19/09) - district court acted well within its broad latitude in disqualifying Mr. Evanson's chosen counsel because of a serious potential conflict of interest and unsworn witness problems. Counsel had been involved in creating two letters that Mr. Evanson sent to participants in his tax scheme and the gov't might well have sought admission of those letters into evidence at trial on charges of conspiracy to commit tax fraud, tax evasion, and aiding and assisting in preparation of false income-tax returns.

Crawley v. Dinwiddie, -- F.3d --, 2009 WL 3338332 (10th Cir. 10/19/09) - affirmance of denial of habeas relief. Okla court did not unreasonably apply Strickland by finding defense counsel was not ineffective in maintaining, consistent with Mr. Crawley's wishes at the time, that Mr. Crawley was competent to stand trial, despite medical opinion and the state's position to the contrary.

Williams v. Jones, 2009 WL 3284847 (10/14/09) (Published) - Good news. The 10th denies rehearing en banc 7-4 where the panel had held a defendant should get relief that puts him back in the position where he would have been had his counsel not unethically threatened to withdraw if he took the plea offer. The dissent (Judges Gorsuch, Tacha, O'Brien and Tymkovich) would have held that the subsequent fair trial rendered harmless any ineffective assistance of counsel and that no S. Ct. case says bad advice to reject a plea offer is a violation of the 6th Amendment. The concurrence authored by Judge Kelly and joined by Judges Henry and Holmes says the obvious flip-side of Hill v. Lockhart is that bad advice to reject a plea offer can constitute ineffective assistance. They also contend that the remedy to the violation must be tailored to the injury, requiring putting the defendant back where he would have been if he had accepted the plea offer.

U.S. v. Challoner, 2009 WL 3286128 (10/14/09) (Published) - The 10th gives a cramped reading of what constitutes ineffective assistance of appellate counsel. Counsel is deficient only if counsel omits an issue that is "obvious." It can't be just a winner. It has to be a "dead-bang winner." In this case, the double jeopardy argument that you can't be convicted of § 844(h) and § 924(c) based on the same underlying offense "may well be nonfriviolous" but it requires a "non-obvious" extension of current law. So, no dice.

Weatherford v. Taylor, 2009 WL 3164727 (10/5/09) (unpub'd) - A decision in favor of a prisoner [or rather a prisoner's estate] in a § 1983 case. The prisoner alleged enough to indicate the prisoner's symptoms were such that the jail official knew the risk to the prisoner and recklessly chose to disregard it. The prisoner loudly complained about his severe chest pain and other inmates tried to get help for him and the official just checked on him periodically to see if he was still alive, but didn't seek medical help for him. The prisoner eventually died of a heart attack.

Bloom v. McPherson, 2009 WL 3166959 (10/5/09) (unpub'd) - And yet another decision in favor of a prisoner in a § 1983 case. The prisoner stated enough to get relief for cruel and unusual punishment when he alleged nurses cleared him for kitchen work, despite his medical disability [unspecified] that precluded such work.

U.S. v. Villa, 2009 WL 3182993 (10/6/09) (unpub'd) - The drug dog was reliable enough to establish probable cause, even though 30 of the 60 times the dog alerted in the past, the officer found no drugs. There was still PC because the officer also testified that 99% of the times there were no drugs the subject of the search admitted drugs had in the past been kept where the dog alerted [note: 99% of 30 is 29 2/3 out of 30; one of the subjects must have almost admitted drugs were there]. In any event, what matters most with respect to the dog's reliability is its training, not its actual performance. In other words, if you've gone to a good law school, it doesn't matter much how you actually represent your clients. There was no implication of the 4th Amendment when the dog sniffed a car in a public place in front of the sheriff's office. The d. ct. did not err in refusing to order records of the dog's reliability. Enough information was learned on cross.

U.S. v. Archuleta, 2009 WL 3182995 (10/6/09) (unpub'd) - From a positive perspective, some upbeat news in that, although defense counsel told the court there were no objections to the PSR, counsel had only forfeited, not waived, the appellate argument that the carjacking enhancement did not apply. The 10th ruled there was no error because taking car keys, as opposed to the car itself, from the person, constituted carjacking for the § 2B3.1(b)(5) enhancement.

U.S. v. Cook, 2009 WL 3182991 (10/6/09) (unpub'd) - This is a case where some of our upward-variance-loving judges can get their ideas. The 10th affirms an upward variance from 37-46 months to 84 months for having a bad criminal history record, a mere 24 points..

Lucero-Carrera v. Holder, 2009 WL 3287541 (10/14/09) (unpub'd) - The 10th indicates a willingness to give an expansive meaning to when an offense is "related to forgery" to constitute an aggravated felony. The 10th notes "relating to" has been given an expansive meaning. But, in any event the Colorado forgery in this case is close to the commonly understood meaning of forgery---falsely making, completing, altering or uttering a written instrument. This is different from using a genuine document, which the 9th Circuit has held is not a forgery.

U.S. v. Riggans, 2009 WL 3166955 (10/5/09) (unpub'd) - Unsurprising, but just something that bothers me. The 10th notes that a sentence shorter than the stat max the defendant got "may have been sufficient but not greater than necessary to satisfy the goals of sentencing," but the d.ct. had a wide range of discretion to pick the sentence it did. In other words, the d. ct. has the discretion to violate § 3553(a)'s mandate to impose a sentence as low as possible to meet the sentencing goals.

Redmon v. Wiley, 2009 WL 3262020 (10/13/09) (unpub'd) - The BOP's decision to preclude the prisoner from early release based on his participation in the Residential Drug Abuse Program ("RDAP") because he had a prior aggravated battery conviction was okay. The BOP regs say a person with an aggravated assault can't get early RDAP release. The prisoner's aggravated battery was close enough, upon reference to the FBI's Uniform Crime Reports definition that BOP uses, to be considered an aggravated assault. He didn't have to have used a weapon to be disqualified from RDAP.

U.S. v. Gibson, 2009 WL 3193527 (10/7/09) (unpub'd) - The defendant had no standing to assert a state's rights under the 10th Amendment in his challenge to SORNA.

Search and Seizure Outline

The excellent folks at the Federal Defender Office in Portland, Oregon, have updated their Search and Seizure Outline, which is available here.

Crack Amendment Does Not Apply to Supervised Release Violations

United States v. Fontenot, ___ F.3d ___ , No. 08-1363 (10th Cir 2009)
In another case of the (non-applicable) retroactive amendment reducing the crack guidelines by two levels, the 10th decides that the amendment does not apply to sentences upon revocation of supervised release. Defendant violated his supervised release on his underlying pre-amendment crack sentence, and received six months in prison concurrent to the time on his new conviction. He argued that this was a term of imprisonment based on a subsequently lowered range. The 10th held that his current incarceration is due to his non-compliance with SR and not the crack and a reduction would be contrary to the guideline policy statement which interprets the reduction statute, 3582(c)(2), as not authorizing a reduction of supervised release sentences. It rejects defendant’s position that U.S. v. Johnson, 529 U.S. 694, which says that post-revocation sanctions are part of the penalty for the original offense , applies in this situation.

Officer's Sniff Inside Car Was An Unconstitutional Search

US v. Montes-Ramos, 2009 WL 3138866 (10th Cir. 2009) (unpublished): The Tenth Circuit reversed the district court's denial of the defendant's suppression motion. It was reasonable for the deputy to stop Mr. Ramos in the bootheel area when his temporary license plate was flapping and not legible as required by state law. However, the officer leaned into Mr. Ramos' car and after that smelled marijuana. That was a search, albeit minimal, that was without probable cause. The government failed to make any of the arguments that might have compelled affirmance. Thus, the majority had to reverse. Briscoe dissented and would have found probable cause to search.