Thursday, February 25, 2010

Circuit Snippets

A variety of decisions from other circuits:

US v. Vinton, 2010 WL 392347 (C.A. D.C. 2/5/10): The D.C. Circuit held that, under Arizona v. Gant, 129 S.Ct. 1710 (2009), a US Park Police officer who had stopped the defendant for traffic violations and then saw an unlawfully possessed knife in the car could search the vehicle and pry open a locked briefcase to search for additional weapons even though the driver was handcuffed.

US v. Jules, 2010 WL 348044 (11th Cir. 2/2/10): Principles of fundamental fairness require that a district court intending to rely on new information when considering a § 3582(c)(2) motion to reduce sentence must give the parties notice and an opportunity to contest the information. In this case, the court received a report from the probation office indicating that, while in prison, the defendant had been disciplined for drug and other violations. The court relied on the report when denying the motion. It should have allowed the defendant to respond to the new information. The case was remanded.

US v. Self, 2010 WL 364359 (5th Cir. 2/3/10): When the defendant and the government reach a plea agreement to a stipulated sentence pursuant to Fed.R.Crim.P. 11(c)(1)(C), the district court cannot accept or reject the agreement “piecemeal.” In this case, the PSR indicated that the defendant was a career offender and faced a much higher sentence than the agreed-upon sentence. The court made some muddled statements about not following that part of the agreement. On appeal, the Court of Appeals agreed with the government that the court rejected all of the agreement, but it found plain error in that the Rule 11(c)(5) warnings were confused and inadequate. The case was remanded for resentencing before a different judge.

US v. Reagan, 2010 WL 377313 (5th Cir. 2/4/10): The theft of federal funds statute, 18 USC § 641, was violated each time the defendant cashed an improperly obtained rent subsidy check from HUD. In this case, the defendant unlawfully rented a residence to his mother-in-law and received subsidies even though the program does not cover leases between family members. He was charged with one count for each of the five years for which he received checks. This was not multiplicitous, the Court held.

US v. Bowers, 2010 WL 424911 (6th Cir. 2/8/10): Applying Gonzales v. Raich, 545 U.S. 1 (2005), the Sixth Circuit held that the Commerce Clause does not prohibit application of federal child pornography laws to homemade pornography that is not distributed in any way. The court also rejected the defendant’s claim that his roommate and her boyfriend were acting as government agents when they discovered the incriminating photo album.

Hayden v. Patterson, 2010 WL 308897 (2d Cir. 1/28/10): The Second Circuit rejected the argument that New York’s felon disenfranchisement law violated Equal Protection because it disproportionately affects blacks and Latinos.

US v. Martinez-Rios, 2010 WL 323553 (5th Cir. 2/28/10): The Fifth Circuit held that, following Melendez-Diaz v. Mass., 129 S.Ct. 2527 (2009), an official certificate of nonexistence of a record (CNR) is testimonial and thus admission of a CNR indicating that a defendant charged with illegal reentry had not received consent for readmission into the US violated the defendant’s 6th Amendment rights. However, there was ample other evidence so the error was harmless.

Singer v. Raemisch, 2010 WL 252290 (2/25/10): BOP can ban playing and all information about Dungeons and Dragons and similar games because they are a threat to institutional security. BOP officials’ beliefs that such games can promote competitive hostility, violence, addictive escape behaviors, and gambling, and that the leadership hierarchy in the fantasy world could translate into real world gang activity were not shown to be irrational. The defendant would just have to find other entertainment.

US v. Christiansen, 2010 WL 346245 (7th Cir. 2/2/10): A defendant who was convicted of wire fraud after she bilked several people out of money and property by posing as an expectant mother who wanted to give her child up for adoption properly had her sentence enhanced for using mass marketing and for targeting vulnerable victims (adults desperate to adopt).

US v. Carr, 592 F.3d 636 (4th Cir. 2/26/10): The defendant’s prior convictions for breaking and entering separate storage units in the same complex and on the same day qualified as separate predicate felonies for ACCA purposes.

Tenth Addresses "Testimonial" Statements, Affirms Meth Conviction

U.S. v. Lopez-Medina, 2010 WL 569944 (2/19/10) (Published) - Some lessons about the consequences of defense tactics with good, though not startling, news concerning what statements are testimonial.

The 10th holds that a confidential informant's ("CI") statements to law enforcement officers are "clearly testimonial" under the Supreme Court's decision in Crawford. But defense counsel waived the defendant's Confrontation Clause rights regarding the CI's statements when counsel questioned an officer about what the CI said to him and then explained: "If I open up a door, please feel free to drive into it." Such a waiver is valid as long as the defendant did not personally dissent from counsel's decision [not likely] and the decision was a legitimate trial tactic, [it was hard to tell what the tactic was here, but the 10th declared it was legitimate]. The 10th acknowledged its conclusion that Confrontation Clause rights can be waived without an explicit waiver from the defendant him or herself conflicted with the 6th Circuit's position, but noted it coincided with a few state courts' case law and prevented sly defense attorneys taking advantage.

The 10th also held statements at a change of plea hearing are testimonial under Crawford. This time, however, the statements were admissible under the rule of completeness, even though they were otherwise inadmissible. The 10th indicated Crawford might trump that rule, but the defendant never argued that. The government had the right to bring in the declarant's admission that he and the defendant conspired to distribute meth after the defense introduced the declarant's conviction in hopes of convincing the jury only the declarant was responsible for the distribution. The district court did not abuse its discretion when it refused to allow, pursuant to the rule of completeness, evidence that the government promised the declarant a downward variance if he provided assistance in prosecuting the defendant. The promise would not help explain the declarant's plea because the declarant ended up not assisting the government and so the promise did not prompt the plea. However, the 10th did not discuss how the declarant's subsequent behavior explained his reasons for the plea at the time of the plea.

The district court did not abuse its discretion in precluding the defense from crossing a government witness about the facts underlying the witness's prior conviction. Federal Rules of Evidence 609 and 403 permit evidence of the nature, but not the facts underlying, the conviction. The government did not violate Federal Rule of Evidence 404(b)'s disclosure requirement when it did not reveal the witness would testify about trading sex for meth because the government didn't know about that until trial. The testimony was admissible because the witness having a romantic relationship with the defendant reduced the chance she was misidentifying the defendant, who claimed it was his look-alike brother who was guilty. The government's cross-examination and argument referencing the defendant's illegal-alien status was okay because the defendant had testified he was law-abiding. The government was wrong to argue that the defendant's weight gain after arrest showed he was involved with meth. Although a former meth addict testified he gained weight after he stopped using meth, there was no testimony regarding the connection between the two. But the error did not affect the defendant's substantial rights. Conviction affirmed.

Rehearing Granted to Review Defendant's § 3582(c)(2) victory

U.S. v. Cobb, 2010 WL 546057 (2/17/10) (Published) - The 10th has granted the government's rehearing en banc petition challenging the decision at 584 F.3d 979 (2009) that a reduction under § 3582(c)(2) is possible, even with respect to an 11(c)(1)(C) plea, where the agreement as to sentence was based on the guideline range in effect at the time.

Inmates Complaining About Placement Policy Must Pursue Admin Remedies Against BOP

Garza v. Davis, 2010 WL 537769 (2/17/10) (Published) - After dealing with the issue several times in unpublished decisions, the 10th issues a published decision. Inmates in Florence prison camp have been complaining that the prison is categorically denying their placement in community correction centers and residential reentry centers for more than six months. The 10th holds the inmates must exhaust administrative remedies first. That course of action is not futile because the BOP memos allow for greater than six month placements and the appeal procedure provides for challenging the camp's policy to higher authorities above the camp administrators.

Unpublished Decisions Address Sentencing Situations

U.S. v. Palato, 2010 WL 582632 (2/19/10) (unpub'd) - A word to the wise regarding plea colloquys. The 10th affirmed the district court's decisions regarding drug quantity and to refuse a minor role reduction, in part based on the defendant's admissions while setting out the factual basis at the plea hearing.

U.S. v. Park, 2010 WL 529300 (2/16/10) (unpub'd) - The district court's explanation for imposing consecutive sentences was adequate where the court said it agreed with the government's analysis and adopted it on the record.

Wednesday, February 24, 2010

CI's Testimony Not "Inherently Incredible"; Evidence Supported PWID Conviction

United States v. Garcia, ___ F.3d ___ , No. 08-5090 (10th Cir. 2010)

Circumstantial evidence of defendant’s dealing in drugs on date charged, combined with testimony of a cooperator, sufficient to convict him of possession with intent of over 500 grams of meth. Defendant engaged in a drug transaction with a confidential informant a month earlier and admission of this evidence did not violate Fed.R.Evid. 404(b); Defendant frequented the house where the charged drugs were found in the relevant time period; and cooperator who lived in house where charged drugs were found testified drugs belonged to Defendant and cooperator was not inherently incredible. The opinion includes a discussion of what might be inherently incredible.

Use of jury form not plain error, and did not improperly shift burden of proof to Defendant (the form failed to state that the government had the burden of proof and instead stated that “we the jury . . . unanimously find, beyond a reasonable doubt, that...); the jury instructions as a whole made clear that the government had the burden and Defendant had no burden to prove innocence.

IAD Request Sent to AUSA Ineffective; Felon-in-Possession Charge Affirmed

United States v. Washington, ___ F.3d ___ , 2010 WL 611789 (10th Cir. 2010)

1. Defendant’s pro se request for disposition of his federal charges under the Interstate Agreement on Detainers was ineffective because he sent it only to the US attorney (USA) and then to ATF (charge against him was felon in possession of firearm), and not to the appropriate district court. Although he sent the USA two requests, with one addressed to the “department of justice, court” to the USA address (but USA was not same building as court) this was not good enough (surprise! USA did not forward the court the court’s copy). Fex v. Mich., 507 US 43 (1993) has no good faith exception when a third party negligently or maliciously fails to deliver.

2. Court of Appeals states that it does not adopt defense of fleeting possession (in spite of 10th Cir. Pattern JI on defense), but even if it did, the evidence in this case on charge of felon in possession of a firearm did not support the instruction. It only applies to momentary possession of contraband either with no knowledge that it is contraband or with a legally justifiable reason for possessing it. He told police that he knew he had handled a gun.

3. No abuse of discretion in allowing trial exhibit of transcript of Defendant’s state probation admission of having handled the guns going to the jury during deliberations. All exhibits went to the jury, so no over-emphasis of this one, and other sources besides Defendant’s admission were in front of the jury with Defendant’s statements about handling the guns (cop, people in the car with him at the time of the stop).

Evidence Supported Conviction for Impersonating Border Patrol Agent

United States v. Ramos-Arenas, ___ F.3d ___ , No. 09-2165 (10th Cir. 2010)
Evidence was sufficient to uphold conviction for impersonating an officer. Defendant’s driving and speeding girlfriend was stopped and was being given a $115 ticket when Defendant said he was a Border Patrol agent. State policeman, as a professional courtesy, turned the ticket into a warning when Defendant agreed he would make sure she wouldn’t speed again. First, no plain error in instructing jury without an “intent to defraud” element–9 of 10 circuits do not require the government to prove an intent to defraud. Even if such an intent is an implied element of 18 USC § 912, a jury could find that intent in Defendant’s unsolicited comment that he was a border patrol agent. Second, Defendant obtained a thing of value, by giving the benefit of the ticket dismissal to his girlfriend and elevating himself in her eyes.

No 3582(c) Relief for Defendant Sentenced as Career Offender

US v. Corber, -- F.3d --, 2010 WL 599887 (10th Cir. 2/22/10) - district court lacked authority to reduce sentence under 18 USC § 3582(c) because the "applicable guideline range" was based on the career offender guideline and would not have been lowered by Amendment 706. The downward variance received by Mr. Corber is analyzed like a departure; i.e., it came into play only after calculation of the "applicable guideline range."

Monday, February 22, 2010

Resources for Defending Non-Citizen Clients

Effective criminal defense often includes analyzing the potential effects of a conviction on a non-citizen client's immigration status. To help with this endeavor, immigration specialist Norton Tooby has made available an on-line version of his book, Tooby's Guide to Criminal Immigration Law, and other resources, for free at this link.

Friday, February 19, 2010

Winter Edition of Liberty Legend Available

The Winter 2010 edition of the Liberty Legend newsletter, published by the National Association of Federal Defenders, is now available.

In this issue . . .


By Fran Pratt, Co-Chair of Amicus Committee, Assistant Federal Defender, Eastern District of Virginia, Alexandria


By Mark D. Hosken, Assistant Federal Public Defender, Western District of New York


By Tim Henry, Assistant Federal Public Defender, District of Kansas

By Lisa Call, Assistant Federal Defender, Middle District of Florida


By Miguel Nogueras, Assistant Federal Public Defender, Southern District of Texas

Past and current issues of The Liberty Legend are available on-line at the Association's web site:
Main Site ->
Newsletters ->

Tenth Affirms Dismissal with Prejudice Based on Speedy Trial Right Violation

United States v. Seltzer, — F.3d —, 2010 WL 537763 (10th Cir. Feb. 17, 2010), is a welcome reminder that the defendant still has a right to some diligence on the part of the government seeking to incarcerate him. In this decision, the Tenth Circuit affirmed the district court’s dismissal with prejudice of the Superseding Indictment against Andy Seltzer because his Sixth Amendment right to a speedy trial was violated. Along the way, it sheds welcome light on when the delay has been “too long in a system where justice is supposed to be swift but deliberate.” Id. at *3 (quoting Barker v. Wingo, 407 U.S. 514, 522 (1972)).

Mr. Seltzer, along with a co-defendant, David Ortego, was indicted on November 2, 2006, in federal court on charges of counterfeiting and felon in possession of a firearm. Federal arrest warrants were issued for the two. Mr. Ortego was arrested on November 6, 2006, and released the next day. Mr. Seltzer, however, was incarcerated in the county jail for two unrelated drug charges, so the federal agents did not execute his arrest warrant.

On March 21, 2007, Mr. Ortego told the government that he knew about Mr. Seltzer’s counterfeiting and that Mr. Seltzer owned the firearms. The AUSA dismissed the indictment against Mr. Ortego because of the lack of evidence. The AUSA also decided to not proceed against Mr. Seltzer until after the unrelated state proceedings were completed.

In April 2007, Mr. Seltzer obtained bond funds so that he could care for his sick mother. The county jailer refused to release him because of the federal indictment. Mr. Seltzer filed a motion on April 26, 2007, attempting to gain release so he could attend his mother’s funeral. In his pro se motion, he asserted his speedy trial rights. The court struck his motion because the bail bonds agent, who was helping him, appeared to be practicing law without a license. Mr. Seltzer filed a motion seeking appointment of counsel and again asserted his speedy trial rights. Finally, on July 11, 2007, he was appointed counsel, Colleen Scissors.

Ms. Scissors requested at least three times that her client be arraigned before a magistrate judge. Each time, the AUSA told Ms. Scissors that arraignment would not occur until after resolution of Mr. Seltzer’s drug charges. Mr. Seltzer pled guilty to the state charges in late 2007 and was sentenced in early 2008.

Although Mr. Seltzer had pled to the state charges by the end of 2007, the government did no investigation on his federal case until June 2008. On August 6, 2008, the government issued a Superseding Indictment based on the same evidence previously seized. On August 14, 2008, Mr. Seltzer filed a motion to dismiss the indictment, which the district court granted.

The Tenth Circuit applied the Barker four-part balancing test and unequivocally concluded that the factors were all in Mr. Seltzer’s favor. The first factor, the length of the delay, was “presumptively prejudicial” because it was more than a year. In fact, it was two years. The Court noted that in some circumstances, a two-year or longer delay might not be unreasonable. However, in this case, the charges were not complex and the government had Mr. Ortego’s testimony by March 2007.

The second factor, reason for the delay, also weighed against the government. The government’s reason for delay was the desire to complete the state charges. The Court put the burden of justifying the need to defer to other sovereign’s proceedings on the government, which it could not do here. The state charges were unrelated to the federal charges. Furthermore, there would have been no trouble moving Mr. Seltzer from state to federal custody and back because the county jail was only five blocks from the federal courthouse. Finally, the charges against Mr. Seltzer were relatively simple. As it was, he was caught in a Catch-22, unable to obtain bond in the state proceedings because of the federal charges, and the federal government refusing to proceed against him.

The third factor, the defendant’s assertion of his speedy trial rights, were clearly weighed in Mr. Seltzer’s favor. He had asserted them pro se, and then repeatedly through counsel.

The fourth factor, prejudice, is often the most difficult for a defendant to prove. The Tenth Circuit concluded that Mr. Seltzer was prejudiced in at least three ways. First, Mr. Seltzer showed he was prejudiced because his pretrial incarceration was increased and he could not make bond. Second, his ability to defend and prepare his case was impaired by the delay because he was denied court-appointed counsel for more than six months. Finally, he was prevented from asserting his statutory speedy trial rights sooner.

This is a wonderful case to use when asserting that a client’s Sixth Amendment speedy trial rights have been violated. Congratulations to Virginia Grady and David Johnson of the Colorado FPD office.

Thursday, February 18, 2010

Unpublished Decisions

U.S. v. Liner, 2010 WL 517640 (2/12/10) (unpub'd) - Troubling comment: "We find the defendant's arguments that his sentence was manifestly substantively unreasonable to be so wholly without merit that we are compelled to remind defense counsel of his ethical obligation not to present frivolous arguments to this court."

U.S. v. Requejo, 2010 WL 446997 (2/10/10) (unpub'd) - The district court's error in not making the proper perjury findings to justify an obstruction-of-justice enhancement was harmless because the court sentenced below what the guideline range would have been if no such enhancement had been applied. Nothing in the record suggested the court would have imposed a lower sentence had it not applied the enhancement [thus, in effect, switching the burden regarding harmlessness to the defendant].

U.S. v. Turner, 2010 WL 517621 (2/12/10) (unpub'd) - There were plain errors with respect to the improper certification of pretrial transcripts, the magistrate's advice to the defendant and the lack of written detention findings, but they had no substantial effect on the defendant's substantial rights. The defendant saying "I just feel like [my attorney] is not really working for me" did not trigger the right to a hearing to consider appointing substitute counsel, because there was no evidence of a "complete breakdown" in the attorney-client relationship.

Duty v. Workman, No. 07-7073 (2/12/10) (unpub'd) - Another affirmance of an Oklahoma capital conviction with bizarre, horrific facts. The petitioner tricked a cellmate into allowing himself to be bound [supposedly to get the petitioner sent to segregation] and then strangled him to death. The petitioner then sent a subsequently-intercepted letter to the cellmate's mother telling her he just killed her son in a planned way, explaining how he did it, saying he did the victim a favor because he was "too stupid to live" and would have been in and out of prison all his life anyway. The petitioner later wrote a letter to the DA offering to plead guilty to murder, but only if he would get the death sentence, and declaring that, if the DA didn't arrange to give him the sentence he deserved, he would continue to "kill again and again." The petitioner later pleaded guilty to murder and asked for the death sentence, waiving his right to present mitigation evidence. Then the victim's mother testified that she did not want the petitioner to get the death penalty, but rather to live a long time in prison thinking about what he did. The court granted the petitioner's wish. The petitioner had a change of heart alleging post-conviction that he was too depressed at the time of the plea and his counsel had not investigated sufficiently. The petitioner then alternately withdrew his petition and then reinstated it a number of times.

The 10th held the case was governed by Shriro v. Landrigan, 550 U.S. 465 (2007). Even if the petitioner had known about his depression and counsel had investigated more, he would have waived the presentation of mitigation evidence. And, anyway, the facts of the case were so horrible that the now-proffered mitigating evidence would not have changed the death verdict. Plus, the petitioner procedurally defaulted his challenge to the lethal-injection protocol, which he should have challenged when he filed his state petition.

Double Jeopardy Claim Rejected for State Petitioner

Lambert v. Workman, 2010 WL 446956 (2/10/10) (Published) - It was not unreasonable for the state court of appeals to find no double jeopardy violation when the petitioner was convicted of first-degree murder after the appeals court had reversed the initial murder conviction that might have been based on a felony murder theory not alleged in the indictment, but affirmed a predicate robbery conviction. The "continuing jeopardy" principle could justify a later conviction of a greater offense, despite the conflicting principle that the conviction of a lesser-included offense precludes a later prosecution for the greater offense.

Ponzi-scheme Defendants Lose on Most Issues

U.S. v. Lewis, 2010 WL 481282 (2/12/10) (Published) - The offense was a classic Ponzi scheme. The 10th found insufficient evidence of a few counts of wire and security fraud because the government cited no evidence that the person pitching the fake investments knew she was lying and no evidence the defendant caused her to lie. Interestingly, the 10th says that maybe there is such evidence in the record, but it was not going to bother to "scour without guidance the voluminous record for that evidence." There was, however, sufficient evidence for other counts, even though the victim did not testify.

It was okay for the district court to admit 16 boxes of bank records through a declaration by a records custodian, pursuant to Fed. R. Evid. 902(11). While the notice of authentication was only given 12 days before trial, the defense had access to the boxes for years. Any lateness in the pretrial disclosure of witnesses and exhibits, concerning which the defendant has no right, did not prejudice the defendant. Rule 1006 did not require disclosure of the database the government used to aid in preparing the exhibit summarizing the documents. It only requires access to the summarized documents, which the defendant had. The 10th caustically says: "Apparently misunderstanding what hearsay is, the defendant fails to point to any hearsay admitted by the court." False statements of co-conspirators were not hearsay because they were not introduced for the truth of the matter asserted, but actually the government meant to prove the statements were false. The 10th thought it was fair to rule on that basis, even though the government never raised the non-hearsay claim below, because the record clearly established the admissibility of the statements. With respect to other alleged hearsay statements, the defendant just cited to a transcript page without saying what the objectionable statement was. The 10th says: "He apparently invites us to examine each statement on the cited pages to determine whether it was in fact hearsay. We decline his invitation. We will save our resources for properly framed arguments." Ouch. The better explanations in the reply brief came too late. The 10th found no "holistic" fundamental unfairness, which requires a shocking of the conscience. "The court's conscience is at peace," the 10th concludes.

An aiding and abetting conviction is okay, even though there was no allegation of such in the indictment. The defendant was not entitled to a Franks hearing, because, while he alleged certain omissions in the warrant affidavit, he never alleged the missing information was intentionally or recklessly omitted.

There was no procedural error in imposing a 330-year sentence on one defendant. The court properly decided the defendant had not proffered a significant justification for a major variance to 25 years, did consider the defendant's health and the fact that the defendant was 72 years old and could not determine if the defendant's sentence created an unwarranted disparity with other financial-crime defendants because the defendant only noted the financial-crime defendants' names, offenses and sentences, but not the facts of their cases. The sentence was substantively reasonable. The district court didn't have to give equal weight to all factors. Here the district court could give more weight to the heinous nature of the offense: stealing over 43 million dollars with ruinous consequences for hundreds, including"the elderly, infirm and disabled."

The other defendant could not meet the plain error standard because he could not show that on remand the district court would certainly not impose the enhancement for violating a cease-and-desist order. And, besides, the evidence indicated the defendant did know about the order. Finding of facts by a preponderance with respect to acquitted conduct is just fine. The amount of foreseeable loss was properly calculated based on reliable evidence.

Community Service Condition of Probation Affirmed

U.S. v. Middagh, 2010 WL 487174 (2/12/10) (Published) - The 10th affirms a probation condition of 240 hours of community service for accepting social security benefits that were a deceased person's. On the good news side, the 10th considered preserved the challenge to the court's failure to explain its sentence because when the defense attorney started to explain his objection to the sentence, the court cut him off midsentence and told him: "the matter is done," thus affording the defense no opportunity to register a procedural complaint.

But on the merits, the 10th was unsympathetic. The Rule 32 requirement that the court rule on a dispute applied only to factual disputes, not to the question whether the community-service condition was arbitrary. The court's general reference to § 3553(a) and the statement that community service would be better than imposing a fine on an indigent person, although "maybe not expansive," were sufficient to meet the court's obligation to explain the sentence. The Tenth added: "what would have required an explanation would have been the sentence defense counsel requested of 40 hours of community service." So, of course, the 10th found the 240-hour sentence just peachy keen, given the $130,000 stolen over 23 years, the fact that the defendant's wife's inheritance paid all the restitution off, not him, and all he lost from being on probation was the loss of the right to hunt.

Friday, February 12, 2010

Defendant Denied Relief Under Innocence Protection Act

US v. Jordan, No. 08-1431, 2/11/10 - Defendant was convicted of assaulting and murdering a fellow inmate with a shank one afternoon in the recreation yard at Florence. Two eyewitnesses identified him as the stabber, and several more saw him chase the victim after the stabbing and then throw the shank on a roof. There was DNA on the shank, as well as on a glove found in the prison yard. None of it was defendant's. The 10th affirmed the convictions on direct appeal.

Defendant then filed a motion for DNA testing pursuant to the Innocence Protection Act (IPA)and another for preservation of trial evidence. The district court denied the IPA motion because defendant did not show that his proposed method off testing was substantially more probative than the prior testing method, and because the proposed testing would not produce new material evidence that would raise a reasonable probability that defendant did not commit the offenses. The 10th affirmed, addressing only the latter issue. There was no chance that additional DNA testing would in any way exculpate defendant; the most it could do is prove that someone else had handled the shank, which would make no difference, especially since the eyewitnesses identified defendant as the stabber and defendant admitted at trial that he himself handled the shank and threw it on the roof. As for the evidence preservation motion, the district court originally denied it, but then granted the same request defendant made in a separate 2255 action, so the 10th dismissed this issue as moot.

Lucero concurred in the opinion, and wrote separately to state his view of the proper standard of review. Analogizing to Brady claims, he sees the reasonable probability test as a mixed question of law and fact, but the ultimate question of whether defendant is entitled to relief under the IPA should be reviewed de novo.

Thursday, February 11, 2010

Research and Writing Position at FPD Office for Colo. and Wyo.

According to an announcement released by the Federal Public Defender Office, the Federal Public Defender, District of Colorado, seeks a Research and Writing Specialist. The Office of the Federal Defender operates under authority of the Criminal Justice Act, U.S.C. § 3006A, to provide representation in criminal cases in the federal courts. Such representation is provided by Assistant Federal Public Defenders.

The Research and Writing Specialist is an attorney position that provides advanced legal research and writing services to Assistant Federal Defender Staff. The Specialist’s duties include staying abreast of the latest developments in the law; disseminating this knowledge to Assistant Federal Public Defenders; and drafting motions, petitions and briefs in the federal courts. Research and Writing Specialists are support positions which generally do not involve client responsibilities. Research and Writing Specialists are not generally permitted to appear in court.

It is anticipated that the Research and Writing Specialist will provide support primarily to the Office’s Appellate Division. Within that Division, it is anticipated that the Research and Writing Specialist will provide priority support in matters arising from §2254 capital habeas appeals.

It is strongly preferred that applicants have experience in appellate representations. Because of the need to provide support in capital §2254 matters, it is preferred that applicants have experience in habeas generally and capital habeas in particular. Other related experience may, however, be considered. Applicants must be team oriented, exhibit strong research and writing skills, and possess a true commitment to criminal defense.

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 by submitting a letter of interest, resume, and representative writing sample. Application deadline COB March 5, 2010. Applications should be sent to:

Deanne Bader
Financial Administrator
Office of the Federal Public Defender
633 17th Street, Ste #1000
Denver CO 80202

The Federal Public Defender is an equal opportunity employer.

Wednesday, February 10, 2010

District Court Improperly Limited Government's Presentation of Evidence Supporting Allegations in Indictment

U.S. v. Schneider, No.s. 09-3028 & 09-3045 (2/8/10) (Published) - The 10th reverses a district court's prohibiting the government from presenting evidence supporting all of its allegations in one count of the indictment. The count charged the defendants with dispensing controlled substances resulting in the death of 18 people. The district court told the government it could present evidence only regarding the first listed victim, mostly because the district court didn't want the trial to last too long.

The 10th held that, given a 2002 change in 18 U.S.C. § 3731, the 10th had jurisdiction to consider the effective dismissal of part of a count. The 10th regarded the district court's decision as akin to dismissing a count rather than an evidentiary decision. The 10th found the court's case management had foreclosed the government from fairly presenting its case, since it was not clear at this point how much evidence the government needed to present to establish the defendants were aware of the overdose deaths and to negate any innocent mistake explanation. The district court "could not interfere with the government's ability to prosecute criminal activity any more than it could intrude upon a defendant's opportunity to defend." The evidence was not excludable as unfairly prejudicial because the evidence related to charged, not extrinsic, acts, The dismissed count was not duplicitous. Although the 10th didn't know why the government chose to put all those charges in one count, it was okay for the government to do so where they were all part of a single scheme. A specific unanimity instruction could be relied upon to ensure the jury reached a unanimous decision with respect to the allegations. The 10th also criticized the district court's limitation of the government to 10 days worth of testimony without any explanation for doing so except to conserve resources. But the 10th did not decide whether the limitation was proper because its ruling on the count-dismissal issue could change the district court's time calculus.

The 10th refused to take pendent jurisdiction of the defendants' challenge to the admission of a government expert's testimony because the issue did not meet the Cohen criteria for an interlocutory appeal. In particular, the defendants could more or less vindicate their rights on appeal after they were convicted.

Lawsuit by DA, Cops Against Author Grisham, Publisher Dismissed

Peterson v. Grisham, 2010 WL 337686 (2/1/10) (Published) - The 10th affirms the dismissal of a law suit by a district attorney, a police officer and a criminologist against publishers and authors, including the famous John Grisham, who detailed the DNA exoneration of two defendants convicted of rape and murder in Oklahoma. The evidence consisted of hair samples and one of the defendants' statements that he had dreamed that he had committed the murder. Oklahoma law did not allow recovery for statements regarding public officials unless the statements alleged a crime. The defendants did not allege the plaintiffs committed any crimes.

Unclear Temporary Tag Supported Traffic Stop

U.S. v. Cano, No. 08-3202 (2/8/10) (unpub'd) - The officer had reasonable suspicion to stop a motorist, even though the van had a perfectly legal dealer license plate, because the van also had a temporary tag on the back windshield that was not clearly legible.

Tenth Rejects Petitioner's Claim He Was Improperly Treated as an Adult

Triplet v. Franklin, 2010 WL 409333 (2/5/10) (unpub'd) - In violation of Oklahoma law, the petitioner was treated as an adult, instead of a youthful offender, but he is not entitled to relief on the ground that appellate counsel failed to raise the issue. By pleading guilty, the petitioner waived his challenge to his treatment as an adult because the 10th infers by a byzantine and circular path that Oklahoma would not regard the error as jurisdictional and thus unwaivable [or at least there was enough question as to its jurisdictional nature to excuse counsel from raising the issue]. On the good news side, the petitioner was considered to be "in custody" for § 2254 purposes, even though he had finished serving the sentence he challenged, because the sentence was part of a series of consecutive sentences that must be considered in the aggregate for "custody" purposes.

Civil Rights Complaint Sent Back for More Proceedings

Casanova v. Ulibarri, ___ F.3d ___ , 2010 WL 437335 (10th Cir. 2010)
Reversal of dismissal of §1983 complaint. District court wrongly considered allegations in the warden’s answer as established facts upon which to dismiss the complaint, determining, for example, that the warden took over his post after the largely undated medical conditions actions complained of by petitioner. The district court failed to look at the non-movant’s (petitioner’s) facts in the light most favorable to non-movant, and failed to consider petitioner’s specific response that one of the complained-of actions took place after the warden began his job. Preferable procedure is to order the petitioner to supply dates rather than dismiss (Plaintiff was pro se).

Search Following 911 Call Upheld

United States v. Porter, ___ F.3d ___ , 2010 WL 437337 (10th Cir. 2010)
Denial of motion to suppress gun found in home upheld. Although there was no probable cause to arrest defendant at the time police entered his home, under Michigan v. Fisher, ___S. Ct. ___, 2009 WL 4544992 (December 2009), police entry into and sweep of the home did not violate the Fourth Amendment because it was under the reasonable belief that someone in the home was in danger. The test is an objective one: was there an objectively reasonable basis for believing someone was in danger, and was the manner and scope of the search reasonable. Here, police were responding to a 911 call from someone they knew to get frequently in trouble, who was claiming that she had just been threatened with a gun; she was complaining about a known felon convicted of a violent felony; it was in a bad part of town; defendant was uncooperative when police arrived, hiding his hand behind door; and police could not locate caller but knew others were inside with defendant.

Interplay of State & Federal Sentences Addressed

United States v. Miller, ___ F.3d ___ , 2010 WL 437328 (10th Cir. 2010)
A case addressing some aspects of concurrent/consecutive and state/federal sentences. Pro se “nunc pro tunc” petition to order BOP to designate that petitioner’s upcoming federal sentence be served at the state institution where he is currently serving his state sentence is a habeas petition challenging the execution of his sentence under 18 USC Sec. 2241. Petition fails because BOP cannot make a designation until P is in federal custody. This case is unlike Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990) (nor would the 10th necessarily follow Barden) because here, state sentence was imposed first, and federal sentence is affirmatively consecutive to any other sentence. Plus, BOP regs state they cannot make a nunc pro tunc designation when the federal court runs its sentence consecutive to earlier state sentence.

Statement at Allocution Results in Perjury Enhancement

United States v. Parker, ___ F.3d ___ , 2010 WL 437329(10th Cir. 2010)
Whoops! Should’ve kept his mouth closed. District court stated it was not until defendant’s inconsistent testimony at allocution did it decide that he had perjured himself during his suppression hearing testimony (the court stated that its ruling denying suppression was merely a matter of finding some witnesses more credible, but not a finding necessarily that defendant perjured himself). 10th finds no clear error in district court’s enhancing defendant’s sentence for obstruction based on the perjury finding.

Thursday, February 04, 2010

US v. Prince, -- F.3d --, 2010 WL 337910 (10th Cir. 2/1/10) - reversal of district court suppression order. Although there may have been a mistake of law by ATF re: whether AK-47 "flats" -- i.e., pieces of flat metal containing holes and laser perforations-- received by Mr. Prince constituted firearms, any such mistake did not taint the investigation, affidavit in support of warrant, or the ensuing search warrant. It simply led to two consensual encounters between officers and Prince, the second of which provided officers with pc to search Prince's residence based on belief he was manufacturing or dealing in firearms or possessed a machinegun in violation of federal law.

US v. Headman, No. 09-1033, 2/4/10 - Defendant and others were drinking together. Two of them started fighting and defendant and two women joined in. They and the winner threw the loser into the trunk and drove to the Southern Ute Indian Reservation. They got the loser out, continued beating and also stabbing him, and eventually killed him. Defendant went to trial and was convicted of first degree premeditated murder, first degree felony murder, and kidnapping. His defense at trial was intoxication. Held: 1) As the government conceded, defendant could not be convicted of both felony murder and kidnapping, so one or the other had to vacated on remand; 2) No Brady violation, and therefore no plain error, in failing to disclose that the two women, who had pled and testified against defendant at trial, were sharing a cell at the tribal jail before and during trial, where both stated in affidavits they did not discuss their testimony with each other and defendant alleged no facts to contradict them; and 3) no plain error in failing to specifically instruct jury that intoxication was a defense to aiding and abetting first degree murder. The court seriously doubted that there was any error at all, considering the instructions as a whole, but if there were, it was certainly not obvious.


US v. Barraza-Martinez and US v. Ramirez, Nos. 09-3048 and 09-3057, 2/4/10 - Another all-too-routine traffic stop case in which the driver gets a warning ticket, is handed his documents, is told he is free to go, and voluntarily decides to stick around, answers more questions, and consents to search. 245 kilograms of cocaine were eventually found in secret compartment. Held: 1) Stop for failing to maintain traffic lane was supported by reasonable suspicion, in part because video clearly showed two different failures, and violations were more than de minimis, as required by Kansas law; 2) Consent to search was given during consensual encounter, and did not exceed scope of consent, so denial of motion to suppress was proper; 3) district court did not clearly err in finding that driver was not a minor participant; 4) evidence was sufficient to support passenger's involvement in conspiracy; and 5) passenger's sentence at the low end of the guidelines range was substantively reasonable because defendant did not rebut the presumption that is was.