Instructing Jury on Qualified Immunity Was Harmless Error

Gonzales v. Duran, ___ F.3d ___ , 2009 WL 4912301 (10th Cir 2009)
In § 1983 trial against police officers for interrogating minor and in holding minor and her mother in a police car under ruse, it was harmless error for the trial court to submit to the jury, over plaintiffs’ objections, the question of qualified immunity. The COA explains how juries are instructed on qualified immunity only in the most limited of circumstances, and this was not one of them. However, the jury’s answers to interrogatories showed a total defense verdict, making the error harmless.

Variance from 57 months to 5 years probation affirmed

United States v. Sayad, ___ F.3d ___ , 2009 WL 4912298 (10th Cir 2009)
Affirmance on substantive and procedural reasonableness grounds of sentence of 5 years probation, a variance from the low end of the advisory guidelines, if calculated in a manner most favorable to defendant, of 57 months. Defendant had pleaded guilty to interstate travel in aid of racketeering in a drug case where he was stopped on the interstate transporting 11 kg of cocaine. The district court referred to the Defendant’s Iranian-Christian heritage as a mitigating factor, speculating that in that community he would face more scorn for, yet more guidance to address his misdeeds. Acknowledging confusion in the area, the COA notes but does not decide whether any impropriety of considering this under 18 USC § 3553 raises a procedural reasonableness issue. There was no error, however, because the district court did not rely on Defendant’s religious heritage in imposing its sentence–in context, it was used as proxy for describing how close-knit was Defendant’s family and community. See the COA discussion for the substantive reasonableness of the sentence. It distinguishes Friedman, in which the COA reversed a downward varied sentence, on the grounds that the district court there did not adequately explain (it spoke of “feelings”), in spite of the defendant’s recidivist history and eligibility for career offender status, why the evidence supported such a big variance. (And, the COA states that failure to adequately explain the sentence is a procedural shortcoming). Lesson: support your record well when you are asking for a variant sentence and, just in case you get it, have the district court explain int thoroughly in case the government appeals.

Illegal Seizure Argument Not Preserved; Denial of Suppression Motion Affirmed

U.S. v. Lambert, 2009 WL 4810291 (12/15/09) (unpub'd) - The defendant could not raise on appeal from a conditional plea the contention that the officers illegally seized her, invalidating her consent to search. Her argument below that she did not voluntarily consent and that the search exceeded her consent did not preserve the illegal seizure argument.

The court did not clearly err in finding the defendant's consent was voluntary even though two officers, after she invited them into her motel room, took control of the situation, turning the lights on in the room, denying her request to smoke, briefly looking into her purse without her consent, conducting a protective sweep of the bathroom and ordering her to get dressed in the bathroom with the door closed. The 10th "understood how these actions could create a coercive environment," but for the most part the officers appeared to have been motivated by legitimate concerns and did not act unreasonably. The officers felt uncomfortable when the defendant got dressed with the bathroom door open, and the search of the purse was based on a legitimate concern that she might have a weapon, [given they were responding to a report of a firearm sale and the defendant's seemingly untruthful answers to their questions]. The search of the bathroom appeared to be unlawful, since it was not incident to an arrest, and there is no justification for refusing to allow the defendant to smoke, but all-in-all the defendant's consent was voluntary.

Use of Firearm Enhancement Upheld

U.S. v. Philley, 2009 WL 485267 (12/17/09) (unpub'd) - It was okay to impose an enhancement for using a firearm in connection with a felony under USSG § 2K2.1(b)(6), even though the defendant was convicted only of a state misdemeanor for the conduct he engaged in with the firearm. There was sufficient evidence to establish the defendant's shooting at the door was meant to injure the victim, constituting an aggravated battery under Wyoming law.

Pretrial Diversion Not a Conviction

Arroyo v. Starks, 2009 WL 4827370 (12/16/09) (Published) - There is no habeas remedy to challenge a case resulting in pretrial diversion. Such a case at most anticipates a conviction. It does not involve a conviction. Consequently, the plaintiff can challenge the false arrests that led to the pretrial diversion through a § 1983 suit.

Insufficient Allegation of Intent to Harm in High-Speed Chase to Support Civil Rights Action

Ellis v. Ogden City, 2009 WL 4857085 (12/17/09) (Published) - The plaintiffs did not allege enough to warrant relief in a § 1983 action for the officer engaging in a high speed chase and killing a bystander. The officer going 80 mph in a 55 mph zone through residential streets after he was ordered to stop chasing did not establish the intent to harm necessary for relief when there was no time to deliberate.

Prior to State Decision, Officer Could Have Reasonably Concluded "Possible Harm" Sufficient for Arrest

Herrera v. City of Albuquerque, 2009 WL 4755705 (12/14/09) (Published) - An arrest was okay because the officer could have reasonably concluded there was probable cause to believe the plaintiff violated N.M. Stat. Ann. § 30-6-1(D)(1)---child abuse by endangerment---by virtue of the unsanitary conditions in the home. Before the New Mexico Supreme Court clarified this year that there had to be a "probability" of harm to the child, a "possibility" of harm was enough. The officer at the time of the arrest could have felt the defendant had created the requisite possibility of harm.

Good Faith Saves Search that Violated Gant

U.S. v. Davis, 2009 WL 4884054 (12/18/09) (Published) - The 10th elects to publish a case that reconfirms the decision in U.S. v. McCane, 573 F.3d 1037 (10th Cir. 2009), that the good faith exception applies to officers who acted in violation of Arizona v. Gant, 129 S. Ct. 1710 (2009), prior to the Gant decision, but in compliance with pre-Gant law. Here the officers searched the car while the arrestee was still at the place of arrest and the search occurred within minutes of the arrest. So the good faith exception applies.

Walkaway Escapes Not ACCA Predicates

U.S. v. Shipp, 2009 WL 4827367 (12/16/09) (Published) - A great defense win and a reason to encourage clients who suffered from the former case law that walkaway escapes were violent felonies and crimes of violence to file 2255s before Jan. 13, 2010. The defendant had contended on appeal that his prior walkaway escape should not have counted as a violent felony under the ACCA. The 10th Circuit, by virtue of its precedent, rejected the claim. Undaunted, the defendant filed a timely 2255 raising the same issue. While his 2255 denial was on appeal, the S. Ct. decided Chambers v. U.S., 129 S. Ct. 687 92009) on Jan. 13, 2009. The 10th decides the defendant's due process rights extend to the length of his sentence and due process was violated because his sentence was improperly enhanced. Chambers applies retroactively because it's substantive, not procedural, in nature. It declared what the ACCA has always meant. The ACCA sentence was a miscarriage of justice that the federal courts can now correct. This case did not present the statute of limitations and successive petition problems that other cases might present. But it would seem all defendants who would now benefit from Chambers should try to get their sentences overturned ASAP.

Unpublished Decisions

U.S. v. Niedlinger, 2009 WL 4282839 (12/2/09) (unpub'd) - Showing a badge, pointing out the possession of the badge, stating that, because of the badge, the defendant would not be pushed around any more and demanding to see the mayor without an appointment resulted in an overt act beyond the mere representation of claiming to be a U.S. Marshall to constitute a violation of 18 U.S.C. § 912, which prohibits acting as a federal official when you're not. The 10th rejected the defendant's contention that he had to be acting for a purported official purpose, not for personal vindication. All that's needed is an attempt to use the authority of the official to accomplish something. The jury instruction that the jury had to find the defendant "committed any act in the assumed role" sufficiently captured the meaning of "act as such" in the statute. It was okay for the trial court to allow the attorneys to argue during closing about the meaning of that phrase.

U.S. v. Turner, 2009 WL 4457510 (12/4/09) (unpub'd) - The 10th affirms an upward variance from 51-63 months to 84 months for enticing a minor based on a psycho-sexual evaluation that indicated the defendant was a danger to the community.

Meeks v. McKune, 2009 WL 4269701 (12/1/09) (unpub'd) - The decision in Giles v. California, 128 S. Ct. 2678 (2008)---that Crawford prohibited the admission of hearsay by virtue of the forfeiture-by-wrongdoing doctrine unless the defendant disabled the declarant from testifying for the purpose of shutting up the declarant---was not retroactively applicable.

Stop Found to Be Unreasonable Where Cop Mistakenly Believed Dealer Plates were Improper

US v. Pena-Montes, -- F.3d --, 2009 WL 4547058 (10th Cir. 12/7/09) - Officer initiated traffic stop on reasonable belief that the vehicle lacked a license plate, but observed after pulling it over that the vehicle had a "dealer tag." The officer made a mistake of law in assuming that the lawful use of dealer plates was limited to demonstrating vehicles and thus investigating his suspicion that the vehicle may have been stolen. Under NM law, dealer plates may be used on highways for any purpose. Reasonable suspicion was dispelled as soon as the officer discovered a license plate permitting general purpose use and the stop should have been terminated without questioning the vehicle's occupants at that point. The continued detention violated the 4th A. Case is remanded for determination of whether evidence of Mr. Pena-Montes' identity, which resulted in his § 1326 conviction, was properly obtained.

US v. Sago, -- F.3d --, 2009 WL 4547783 (10th Cir. 12/7/09) - Crack cocaine quantity possessed by Mr. Sago more than five months prior to the activity resulting in the offense of conviction was properly considered as relevant conduct. The five-month interim was insufficient to show the course of conduct was interrupted and that the two instances were unrelated.

Beard v. Kindler, -- S.Ct. --, 2009 WL4573277 (12/8/09) - state courts denied postconviction relief in capital murder case because of Mr. Kindler's escape, based on Penn. fugitive forfeiture law. A state procedural rule is adequate to bar federal habeas review if it is "firmly established and regularly followed." As both parties to this appeal agreed, the fact that the Penn. rule at issue here is discretionary rather than mandatory does not make it an inadequate state procedural ground to bar federal habeas review.

Time Computation, Other Changes in New Appellate Rules

As of today, December 1, among a few other changes, the hard work of the Time Computation Committee has finally come to fruition, doubtless leading to mass confusion for awhile to come. The Criminal Procedure and Appellate Procedure Rules have been changed so that there is no such thing as not counting weekends and holidays. Only calendar days matter. See Fed. R. Crim. P. 45(a)(1)(B) and Fed. R. App. P. 26(a)(1)(B). This change required changing all the references to time limits of 11 days or less [which previously did not count weekends and holidays]. So for the most part all time limits of 10 days are now 14 days, e.g. for notices of appeal. This could make a difference when previously you would get an extra day when there was a holiday mixed within the 10 days. Also, the time to file post-verdict motions for acquittal and new trial and post-judgment motions to correct clear error have changed from 7 to 14 days. Yippee. Time to respond to appellate motions has changed from 8 to 10 days. Reply briefs must be filed within 7 rather than 3 days of oral argument. Boo. Fed. R. App. P. 26(c) clarifies that the 3 days for mailing after service of a document [which applies unless the document is hand-delivered] begins to run only after the date you determine the response would have been due absent the extra three days. Yeah.

Other changes to the criminal procedure rules: Rule 41 specifies that a warrant may authorize the seizure of electronic media and that, unless otherwise stated, that kind of warrant is assumed to allow for a later review of the information in the media. The time for executing the warrant does not restrict when later off-site reviews must be conducted. The inventory may just refer to the "physical storage media" that was seized, not the information found within it.

Rule 32(G) requires the presentence report to specify whether the government seeks forfeiture. Rule 32.2 has been amended with respect to how criminal forfeiture proceedings should be conducted and it states that notice of forfeiture in the indictment should not be designated as a count and need not identify the property or money amount subject to forfeiture.

Rule 11 of the rules governing 2254 and 2255 proceedings has been added. It requires the district court to deny or grant a certificate of appealability at the same time as the final order, i.e., without waiting for the petitioner to file a notice of appeal.

Other changes to the appellate procedure rules: New Rule 12.1 provides for a district court to notify the circuit court when a case is on appeal that the party has filed a motion, [for example a motion for new trial], that the court will grant or that it thinks raises a substantial issue. The circuit court may then remand to the district court for further proceedings before addressing the appeal.

Rule 22 eliminates the requirement that the district court explain why it refuses to issue a certificate of appealability.

The new 10th Circuit Rules go into effect Jan 1, 2010. The changes incorporate the new Rules of Appellate Procedure and reflect the new electronic filing regime.

Other changes to the 10th Circuit rules: most importantly for us brief writers, Rule 28.1(B) suggests a new way to refer to documents in the record where there is no appendix, i.e., when we appeal. For some unknown reason, there should be a reference to the title of the document, as well as the document number and the page number. The example given refers to the title and the date of filing and then the document and page numbers. The rule also says the first such citation should be accompanied by a footnote noting that you are following the convention required by the rule. What a good good, redundant redundant idea.

Now a request for a certificate of appealability is required when the district court has refused to issue one in a non-death-penalty case. Rule 22.2(c)(1)
Rule 27.3(c) notes that opposing counsel need not be consulted when filing a request to withdraw as counsel. Rule 46.3(A) requires counsel to perfect the appeal before seeking withdrawal.

Unpublished Decisions

Thomas v. Parker, 2009 WL 4042667 (11/23/09) (unpub'd) - The 10th affirms granting of habeas challenging the revocation of 30 days of good time credits for possession of contraband, i.e., a prayer cap. The prisoner alleged that the warden asked him to withdraw a grievance against a mail room clerk. When the prisoner refused, the warden pointed to the prisoner's prayer cap, which the prisoner had been wearing for a year, and declared it contraband. The warden never denied the allegations but instead just said the standard practice is that the warden would not see the grievance. That did not refute the prisoner's allegations, which established that the discipline was imposed in retaliation for the prisoner's exercise of his grievance rights.

U.S. v. Sun, 2009 WL 4068439 (11/25/09) (unpub'd) - The 10th affirms a child pornography conviction. The d. ct. did not abuse its discretion when it refused to admit under the statement-against-interest and catch-all hearsay exceptions deposition statements by defendants' family members who lived in China. The cousin's statement that he downloaded pornography on the defendant's computer was not against his criminal interest and he refused to answer cross as to whether he downloaded child porn. The defendant's father's statement that the cousin told him the cousin put child porn on the defendant's computer was too unreliable, given the father's bias towards his son. And, in any event, whatever the cousin downloaded didn't preclude the defendant from being guilty of knowingly possessing the child porn, concerning which there was a lot of evidence, including the defendant's admission. The case would be a good case to look at for helpful language and case law to contest the government introducing hearsay under the catch-all provision.