Defendant's Admitted Knowledge of Marijuana in Bag Supports Conviction for Meth Also in Bag; Defendant Eligible for Safety Valve

United States v. De La Torre, ___ F.3d ___ , 2010 WL ----- No. 09-3029 (10th Cir. 2010). Defendant, convicted after trial of possession with intent to distribute marijuana and methamphetamine, testified that although he knew pot was in the backpack he carried and ditched while fleeing a police raid of a motel party room, he did not know meth was in it. He did not defend on pot count, but defended on meth count.

1. WARNING! Ain’t no such defense. Court determines that jury was properly instructed that if it found Defendant knew he possessed a controlled substance, it was immaterial what was the nature of the contraband. The government proves the mens rea by proof of knowledge of a controlled substances and does not need to prove the Defendant knew it was meth. Defendant basically admitted guilt to the meth charge when he said he knew pot was in the pack. The COA implies that the court’s elements instruction “possessed meth with the intent to distribute it” might have placed a higher burden on the government than required under facts of the case, but Defendant admitted it was a distributable amount of meth so the issue was not reached.

2. Defendant’s testimony that he did not use meth a year prior to the arrest was properly impeached with his statement to Pretrial Services that he used meth around the time of the arrest. Although by statute statements to Pretrial cannot be used to establish guilt, they may be used to impeach.

3. The Court reverses for district court’s erroneous interpretation of the safety valve, USSG Sec. 5C1.2, and Defendant’s eligibility for sentencing under its provisions. Defendant, who refused to be de-briefed, argued that his trial testimony provided all the evidence he had concerning the offense. The Court states that no convicted Defendant who denies guilt could argue that his trial testimony meets safety valve criteria of providing info on the offense, but this was a unique case where there was an admission of guilt, and a fact finder could believe him but find him guilty (for the reason that knowledge of some controlled substance is all that is needed, and it is not important that he did not know nature of the drugs). Timing for disclosure is prior to sentencing, so trial testimony is timely. Error not harmless, and the district court’s refusal to grant Defendant a variance does not mean it would not sentence him to the low end of the lower guideline range: the government did not meet its burden to show that the court would impose the same sentence.

Advice Re: Immigration Consequences is a Constitutional Right

I don't normally include Supreme Court decisions, but this one affects so many of our clients, past and present, that it must be mentioned.

In Padilla v. Kentucky, available at http://www.supremecourt.gov/opinions/09pdf/08-651.pdf, released today, the Supreme Court held that counsel must inform a client whether his plea carries a risk of deportation. Failure to do so can be ineffective assistance of counsel within the meaning of the Sixth Amendment.

The court said that changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. Because the serious consequence of deportation or removal is now virtually inevitable for many noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.

The court acknowledged that there are situations where the deportation consequences of a plea will be unclear, and in such situations a criminal defense attorney need only advise the noncitizen client that there may be adverse immigration consequences. But when the deportation consequence is truly clear, as it was in Mr. Padilla's case, the duty to give correct advice is clear. The court left for another day whether Mr. Padilla was prejudiced.

This case may be the basis for potential habeas relief for previously convicted clients and also for arguments at sentencing, based on the decision's strong language about removal being "an integral part" of the penalty faced by noncitizen clients.

Defendant Failed to Show that Court's Error at Plea Hearing Affected Substantial Rights

US v. Ferrel, -- F.3d --, 2010 WL 1172596 (10th Cir. 3/29/10) - The Tenth Circuit affirms the defendant's conviction and sentence in a possession with intent to distribute meth and cocaine case. The district court erred when accepting the defendant's guilty plea by failing to inform defendant of the drug quantity element of the offense and by misinforming him of the statutory maximum sentence. The district court stated at the plea hearing that the elements were listed in the plea agreement, which actually did not mention the meth quantity involved. Since there was no objection, the plain error standard applies. There was no showing that the error affected substantial rights, i.e., that Mr. Ferrel would not have pleaded guilty and would have exercised right to trial if properly informed. The district court did not err by failing to submit drug quantity and quality to a jury; a defendant is not entitled to plead guilty to some elements of an offense and have a jury decide others.

Defender Testimony Before USSC on Proposed Amendments Useful Now

The United Sentencing Commission is considering guideline amendments that would encourage drug treatment for a few defendants, consideration of certain offender characteristics, eliminating or restricting use of criminal history recency points, and immigration-related departures. Margy Meyers, the incoming chair of the Federal Defender Sentencing Guidelines Committee, and Marianne Mariano, Federal Public Defender for the Western District of New York, presented the viewpoint of the Federal and Community Defenders to the Commission on March 17, 2010. Their written testimony is available here .

This excellent document contains information and ideas that can be used for sentencing memos, regardless of what the Commission does. Topics include: treatment alternatives and their efficacy at reducing recidivism; BOP crowding and inadequacies; a variety of offender characteristics; recency points; and collateral consequences and "cultural assimilation" departures for non-citizens.

It's another fine resource that can be used to argue for a just and fair sentence for your client. Thanks, Margy and Marianne.

No Release for Defendant Found Not Guilty by Reason of Insanity

United States v. Livesay, ___ F.3d ___ , 2010 WL 918067 (10th Cir. 2010). Bipolar defendant found not guilty by reason of insanity of possession of a firearm by a convicted felon (he shot firearm into ground and pellets hit state officers; state decided not to prosecute, D checked self into mental health treatment facility. Feds then picked up the charges). As required, district court ordered an evaluation, and government psychiatrist found defendant fine because currently under treatment, but opined that if treatment should end, there was a high likelihood his symptoms would return and he could be potentially violent. The psych would not recommend unconditional release because there was “a high likelihood that he might become non-compliant with treatment.” District court determined that it was not statutorily authorized to conditionally release defendant to the treatment facility because defendant had not shown by clear and convincing evidence that his release would not create a substantial risk of serious bodily injury to another or damage to property because of a present mental disease. The district court remanded him to custody of Attorney General.

The only matter defendant challenged on appeal was whether the district court could conditionally release him to the treatment program. The Court holds district court had no choice–the statute mandates with the word “shall” that if the defendant does not meet his burden, he shall be remanded to the custody of the Attorney General. Plus, the statutory scheme allows for post-commitment conditional release (which confirms interpretation of “shall”) and that would presumably allow for a more complete assessment of the defendant’s condition.

U.S. v. Fisher, 2010 WL 809818 (3/10/10) (Published) - There was reasonable suspicion to order the car's occupants at gun point to show their hands [which did not amount to an arrest] where officers responded to a call that someone had shot at a woman and her son, late at night; in a high crime area, the car was the only vehicle at the scene and its brake lights were illuminated, indicating it was about to depart. There was no reason to believe the car was involved, except for its proximity to the scene. It was plausible the shooters had not departed yet, although the witnesses did not point the car out as containing the perpetrators.

Zia Trust Co. ex rel. Causey v. Montoya, 2010 WL 780201 (3/9/10) (Published) - The 10th affirms denial of qualified immunity for excessive force in §1983 claim. Viewing the evidence in the light most favorable to the plaintiff, a Dona Ana County deputy sheriff did not have probable cause to believe there was a serious threat of serious physical harm to himself or others, justifying a fatal shooting, where officers responded to a call from a father that he had a dispute with his adult son who had mental health issues and there were firearms in the residence. Upon arrival, the officer exited his vehicle with his weapon drawn and, without identifying himself as an officer, positioned himself as far away as 15 feet in front of the van the deceased was driving. At the time of the shooting, the van's tires were pointed toward the officer and the van had jumped forward a foot, although it was obviously stuck on a retaining wall.

U.S. v. Frownfelter, 2010 WL 825294 (3/11/10) (unpub'd) - The 10th reverses an order of detention pending appeal. The 10th finds a substantial issue of law where the defendant pleaded guilty to one count of an 11 count indictment and the one count charged a misdemeanor amount of stealing government funds. The judge sentenced the defendant as though he had been convicted of a felony based on the introductory indictment paragraph that alleged the stealing of a total of $24,000, which would constitute a felony. The 10th seemed skeptical that the intro turned the misdemeanor allegation in the one count into a felony allegation.

Arocho v. Nafziger, 2010 WL 681679 (3/1/10) (unpub'd) - The plaintiff made out a plausible case of deliberate indifference where the clinical director recommended Interferon/Ribavarin to treat the plaintiff's hepatitis, but the BOP director refused to approve the treatment pursuant to BOP regs. The 10th also gave the plaintiff another opportunity to plead facts establishing the liability of the clinical director because the BOP director was indicating it was the clinical director who didn't make the plaintiff's medical needs clear to the BOP director.

Harris v. Ford, 2010 WL 801743 (3/10/10) (unpub'd) - It was not clearly established that the officer violated the 4th Amendment when he reentered the home without a warrant. After legitimately entering pursuant to a concern that someone was injured, the officer left to get a camera and reentered to photograph incriminating evidence found in plain view.

Tenth Circuit Seeks Clerk of Court

The United States Bankruptcy Appellate Panel of the Tenth Circuit, is currently recruiting for the position of Clerk of Court. The position is located in the BAP Clerk's Office in Denver, Colorado. An announcement that details the duties, responsibilities, and qualifications of the position is located here on the Court's website.

Substantive Unreasonableness Argument Rejected

US v. Chavez-Suarez, -- F.3d --, 2010 WL 761077 (10th Cir. 3/8/10) - Although the court expresses some sympathy for the substantive unreasonableness argument that the 16-level enhancement for reentry after deportation following an 11-year-old marijuana conviction resulted in an unfairly long sentence in light of the "relatively benign nature" and staleness of the marijuana conviction, the district court did not abuse its discretion in rejecting the argument. The court characterizes as "singularly unpersuasive" the government's argument to the district court that "drug trafficking is as serious as murders or child molestation or other serious types of felonies . . . even if it's a small amount [that] might not look horrendous."

Habeas Petitioner's Counsel Was Not Ineffective For Rejecting Instructiions, Conceding Conspiracy

United States v. Gonzalez, ___ F.3d ___ , 2010 WL 702297 (10th Cir. 2010).

After a direct appeal of his drug conspiracy conviction, defendant filed an unsuccessful post-conviction petition claiming errors and ineffectiveness by trial counsel.

(1) Counsel rejected instruction on withdrawal from conspiracy even though trial strategy was to show withdrawal. The Court of Appeals agrees with district court that Defendant cannot show prejudice–the evidence at trial was insufficient for a jury to reasonably find that he withdrew from the conspiracy. While not endorsing a strategy of aiming for jury nullification, the Court attributes counsel’s rejection of the instruction to his realization that he could not meet the hurdle of sufficient evidence to satisfy the elements of the defense (it looked like the district court was going to give the instruction, and the government agreed to it, before defense counsel declined it), while still presenting the jury with some evidence of and claim of withdrawal, at least to some counts. Evidence the Defendant was guilty of conspiracy was overwhelming.

(2) Counsel’s concession that Defendant was guilty of conspiracy was not a “breakdown of the adversarial process” that would lead to a presumption of prejudice under Cronic. The Court seems to set up a requirement that there is a “complete” admission of guilt by counsel before counsel moves into the forbidden zone. The compounding of the harm done by the concession in the context of complexities inherent in multiple charges involving a large and long-standing conspiracy–Defendant argued that concession on the main conspiracy charges amounted to concession on everything–did not move the Court. The fact that counsel vigorously cross-examined witnesses, for example, and tried to show that Defendant left the conspiracy post-2003 (and therefore was not guilty of post-2003 substantive counts) showed that he was still the Defendant’s champion.

(3) Counsel’s concession did not relieve the government of its burden of proof and was not a due process violation. This claim is disposed of like the Cronic claim: There was no concession of guilt on post-2003 counts, so there was not a complete concession of guilt.

The district court correctly rejected a certificate of appealability on 4 other claims: counsel’s failure to present certain evidence; Defendant’s not being present for in-chamber conference on jury instructions; cumulative error; and failure to hold an evidentiary hearing.

Unpublished Decisions

U.S. v. Moreno, 2010 WL 597506 (2/22/10) (unpub'd) - Evidence of the defendant's involvement in criminal conduct for which he was not convicted met the "low" standard of "minimum indicia of reliability." There was more than just a police report. There were eyewitnesses and/or probable cause findings. The extra criminal conduct justified the district court varying upward from 37 months to 60 months for being a felon in possession of a firearm. Interestingly, the 10th refuses to consider a substantive unreasonableness argument because appellate counsel just made a bare contention with no supporting argument, but then tried to head off at the pass a future ineffective assistance claim by saying "it may not be inferred that the defendant was prejudiced" by counsel's inadequate briefing because it is an "extraordinarily heavy burden" to succeed on a substantive-reasonableness claim.

U.S. v. Castaneda, 2010 WL 653575 (2/25/10) (unpub'd) - There was sufficient evidence of possession with intent to distribute cocaine, even though the trial court excluded expert testimony on what the "brick" package contained. The jury could infer the observed substance was cocaine.