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.
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.
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