Bank Fraud Sentence of Five Years Affirmed

US v. Ratliff, 2010 WL 1645144 (10th Cir. 4/26/10) (unpub.) - The Court affirms a 60-month sentence imposed after defendant entered a guilty plea to one count of bank fraud. The two-level enhancement for abuse of a position of trust was proper because Defendant held a position in which she had authority to make substantial discretionary judgments for her employer, who was a victim of the bank fraud since his company was the true owner of the checks she converted to her own use. A two point enhancement for use of sophisticated means was appropriate in light of the sophistication of the defendant's overall scheme that included forging a bill of sale showing she owned the company and her establishment of a phony company bank account in her name. The district court appropriately found relevant conduct by a preponderance standard that included losses due to embezzlement and included amounts of all mishandled checks attributable to the defendant. In light of her false denial or frivolous dispute of relevant conduct, she was not entitled to a reduction for acceptance of responsibility.

Upward Enhancement of Sentence for SR Violation Held Reasonable

US v. Steele, -- F.3d --, 2010 WL 1644575 (10th Cir. 4/26/10) - 18-month sentence for 2nd supervised release violation was procedurally and substantively reasonable, despite advisory guidelines' recommendation of 4-10 months. Disagreeing with some other circuits, the 10th decides a sentencing judge is not required to specifically elicit objections after announcing a sentence. The district judge here adequately explained the sentence to meet plain error standard. Steele's possession of marijuana was a serious infraction that represented a breach of trust eclipsing his admirable support of his children(!).

Evidence Properly Admitted Under FRE 413

U.S. v. Batton, 2010 WL 1632931 (4/23/10) (Published) - The defendant's 1995 conviction for having oral sex with a 14-year-old boy was admissible pursuant to Rule 413 with respect to the charge of transporting a 14-year-old boy across state lines in 2006 with the intent to engage in genital contact with the boy. While Rule 414 only applies to prior sexual contact with a child under 14, Rule 413 covers "sexual contact without consent" with a 14-year-old because a 14-year-old cannot legally consent under federal law. It doesn't matter that the current charge did not include actual sexual contact because Rule 413 covers attempts. Rule 403 did not prohibit admission of the conviction, although it was remote in time, because the offense for which the defendant was convicted and the current allegations were very similar, there were no intervening acts and the evidence of the prior conviction did not take up much court time. There was no prejudice because the court instructed the jury not to find guilt based on the prior conviction. In light of all the instructions, including that the jury could give whatever weight it wanted to the Rule 413 evidence, the instruction that the Rule 413 evidence could be used to show the improbability that the defendant was falsely accused did not create a mandatory presumption of guilt. Expert testimony about the "grooming" of child sex abuse victims was admissible to dispel misconceptions by jurors that the only people who commit sexual offenses are strangers, not trusted family members.

Search Warrant Based on Old E-mails Linked to Address Supported by PC

U.S. v. Burkhart, 2010 WL 16340151 (4/23/10) (Published) - The warrant to search the defendant's home for child pornography was supported by probable cause. E-mails sent at the latest 2 years and 4 months before the search requesting child porn, the linking of the e-mail address to a David Burkhart whose subscriber address was in McAlester, Oklahoma, motor vehicle division records linking David Burkhart to 2 different addresses in McAlester and the registered Jeep Cherokee outside one of the residences was enough evidence. Child porn recipients are likely to hoard child porn for a long time, even though collection is easier now with the internet than it used to be. And in this case the volume of e-mails ordering porn and the defendant's expressed enthusiasm further supported the idea he would keep the porn for a long time. The evidence sufficiently connected the defendant to the address, even though the officers sought a warrant for another home in McAlester as well. The officers could have probable cause with respect to each of the homes because probable cause is less than a preponderance. And, in any event, the good faith exception would apply, if there wasn't probable cause.

Unpublished Decisions

U.S. v. Blacknoll, 2010 WL 1474489 (4/14/10) (unpub'd) - The 10th indicates it would be okay to deny a safety valve reduction on the grounds that the defendant's many misrepresentations in the past made it unlikely the defendant's current description of his role in the offense was truthful and complete. The 10th suggests that perhaps a defendant cannot meet the safety-valve disclosure requirement by making statements after the commencement of the sentencing hearing.

U.S. v. Alicea, 2010 WL 1632903 (4/23/10) (unpub'd) - An officer's hearsay testimony that the credit card company "charged back" the merchants for purchases the defendant made with a fake credit card reliably established there were more than 10 victims of the defendant's offense.

U.S. v. Keller, 2010 WL 1444913 (4/13/10) (unpub'd) - The 10th upholds a variance, contrary to the probation office's recommendation, for a supervised release violation from 4-10 months to 2 years, because of the defendant's repeated violations, the insincerity of her expressed concern for her children and her "gaming" of the system

G.S. v. Holder, 2010 WL 1499931 (4/15/10) (unpub'd) - To determine whether a state drug trafficking offense is an aggravated felony, the court should look to what the statutory maximum sentence would be under federal law, not what the federal guideline range maximum would be.

U.S. v. Howell, 2010 WL 1499587 (4/15/10) (unpub'd) - The district court abused its discretion when it failed to hold an evidentiary hearing on the § 2255 movant's ineffective-assistance-of-counsel claims where there was strong evidence someone had possessed firearms and attempted to manufacture meth at a certain location, but the evidence linking the movant to the location was "somewhat tenuous." The 10th did not detail what the ineffective assistance claims were.

Barrett v. Orman, 2010 WL 1499586 (4/15/10) (unpub'd) - The prisoner stated a valid constitutional claim when he alleged the prison rejected his incoming mail without notice, a statement of reasons and an opportunity to be heard, in violation of his First Amendment and due process rights.

Klinginsmith v. Ledezma, 2010 WL 1531067 (4/19/10) (unpub'd) - The federal prisoner movant may have satisfied the "in custody" requirement by alleging that the unlawful revocation of his special parole with respect to a prior conviction increased his criminal history score with respect to the sentence he was currently serving. But he should have filed in the court of his conviction under § 2255, rather than under § 2241 in the court in the state where he was incarcerated.

Christensen v. Big Horn County Board of County Commissioners, 2010 WL 1627833 (4/15/10) (unpub'd) - The requirement that a prisoner pay 20% of her/his monthly income towards the filing fee applies per case, not per prisoner, thus discouraging multiple filings.

Court Affirms Upward CH Departure & Obstruction Enhancement

US v. Webster, 2010 WL 1531064 (10th Cir. 4/19/10) (unpub) - affirmance of 2-level enhancement for obstruction of justice and upward departure for under-representation of criminal history. The district court implicitly found that Webster willfully gave false testimony under oath on a material matter. The district court finding that Mr. Webster committed the felony of assault and battery with a dangerous weapon is inconsistent with Webster's claimed self-defense and accidental discharge of a firearm. The perjurious testimony was material because, if believed, it would tend to influence the issue under determination. The district court also concluded that Mr. Webster was deliberately lying to avoid punishment. With respect to under-representation, the district court made credibility findings, deferred to by the court, that Webster was not acting in self-defense when 2 prior shooting incidents occurred.

Attempted Burglary is a COV under 4B1.2, But Not An ACCA Violent Felony

US v. Martinez, -- F.3d --, 2010 WL 1530673 (10th Cir. 4/19/10) - Arizona offense of attempted second-degree burglary is a crime of violence, but not a violent felony under the ACCA. The crime of second-degree burglary is defined as "entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein." The attempt statute covers "any step in a course of conduct planned to culminate in commission of the offense." The court based its conclusion that Arizona attempted burglary is not a violent felony on its prior decision in US v. Fell, 511 F.3d 1035 (10th Cir. 2007), which noted that an attempted burglary conviction may be based on conduct such as making a duplicate key, casing a targeted building, obtaining floor plans, or possessing burglary tools. However, the commentary to USSG § 4B1.2 states that a "crime of violence" includes "attempt" offenses.

U.S. v. McCalister, No. 09-5101 (4/16/10) (Published) - An unsuccessful applicant under 18 USC § 3582(c)(2) (retroactive guidelines amendment sentence reduction) cannot file a Rule 60(b) motion to set aside the judgment. Civil rules do not apply to § 3582(c)(2) proceedings which are strictly criminal proceedings.

U.S. v. Escobedo, No. 08-2019 (4/16/10) (unpub'd) - The 10th rejects the government's argument that the defendant's failure to object to a § 2L1.2 16-level enhancement constituted a waiver of an appellate challenge to that enhancement. Waiver would have occurred only if defense counsel was aware of the basis for challenging the enhancement and decided not to pursue it. So plain error review applies. If there was any error in enhancing for a California kidnapping conviction, it was not obvious enough to be plain. Sentence affirmed.

U.S. v. Gutierrez-Vasquez, No. 09-2203 (4/16/10) (unpub'd) - The 10th rejects the defendant's pro se argument that his plea was involuntary on the grounds that neither counsel nor the defendant provided a transcript of the plea hearing for the appellate record. There was no transcript because counsel filed an Anders brief and sought to withdraw.

Banks v. Trani, No. 10-1043 (4/16/10) (unpub'd) - Habeas petitioner files a motion for appointment of counsel to help him pursue a state habeas petition soon after the state S. Ct. affirms his conviction. The state court promptly appoints counsel. Two years later counsel withdraws saying counsel found no good issues. The petitioner pursues his own state petition and then goes to federal court. He is time-barred because the request for appointment of counsel did not toll the statute of limitations. Counsel's indisputable negligence is not enough to equitably toll the time.

Release of Clients with ICE Detainers

The Federal Defenders of Eastern Washington and Idaho have posted a "Kit" for obtaining pretrial release of non-citizen clients at their blog, here .

Order re: Release of Oral Argument Recordings

The Tenth Circuit has issued a policy, effective with the May term, regarding releasing oral argument recordings. Parties or others seeking access to the recordings should file a motion stating the reasons access is desired. If the motion is granted, the Clerk will e-mail the recording as an mp3 file. The policy is interim for the rest of the calendar year, and comments are being solicited. Comments can be sent to the Clerk at the Byron White Courthouse or by e-mail to 10th_Circuit_clerk@ca10.uscourts.gov.

The full policy is at http://www.ck10.uscourts.gov/downloads/order95-1.pdf.

Defendant's Rights Not Violated by Placing Informant in Cell

US v. Cook, -- F.3d --, 2010 WL 1268529 (10th Cir. 4/5/10)
In interlocutory government appeal, the court reverses the district court's suppression of statements made to a jail-house informant.

The government notice of appeal was timely because it was filed within 30 days of district court order denying motion for reconsideration. Although that motion seemed to be merely a request for clarification of the wording of the district court's order, the government argued two issues which would have resulted in reversal if the court ruled in the government's favor and so it postponed the running of the time for appeal.

Mr. Cook declined to talk with sheriff's office investigators regarding the death of a cellmate and invoked his right to counsel. Subsequently, there was a staged "reclassification day" that resulted in placement of a cooperating informant in the cell with Cook, who admitted to the informant his participation with other inmates in murder of former cellmate. Cook argued that after he invoked his Miranda rights, the government improperly reinitiated contact by arranging for the cooperating witness to talk about the murder. The Court decides that Cook's Fifth Amendment rights were not violated because he was completely unaware that he was in the presence of a government agent and so was not confronted with the police domination inherent in a custodial interrogation setting.

Remand Ordered in Prisoner's Religious Rights Case

Abdulhaseeb v. Calbone, 2010 WL 1254350 (4/2/10) (Published) - The 10th reverses summary judgment in favor of Oklahoma prison officials because there was a genuine issue of material fact whether, in violation of RLUIPA, the prison had substantially burdened the plaintiff's Muslim religious beliefs by refusing to provide him with a halal diet that includes meats, but only offering non-pork and vegetarian meals . The question was not whether the restriction substantially burdened the religious exercise of any Muslim practitioner, but whether it substantially burdened the plaintiff's sincerely held religious beliefs. It didn't matter whether the halal meal was central to the plaintiff's religion and neither the court nor the prison was qualified to say the diets offered should satisfy the plaintiff's religious beliefs. The 10th announced that a substantial burden could be placed on religious exercise not only by requiring an activity the religion prohibits or preventing participation in religion-related conduct, but also by placing substantial pressure on an adherent not to engage in religion-related conduct. In this case, the prison effectively threatened the plaintiff with starvation if he chose to follow his religious beliefs. The prison's offer to allow the purchase or donation of religiously-acceptable meals is insufficient to meet the prison's duty, since that policy does not necessarily help an indigent prisoner, the prison had not approved any halal vendors to supply food and the Muslim community cannot be expected or required to provide food for prisoners. The case was remanded to determine if the prison had a compelling interest in its policy and whether the policy was the least restrictive means to serve the compelling interest.

State's Label Is Not Determinative of Whether Prior Conviction is COV

U.S. v. Gastelum-Laurean, 2010 WL 1242804 (4/1/10) (unpub'd) - A USSG § 2L1.2-crime-of-violence victory with the help of a government concession of error: The district court erred when it held that an Arizona aggravated assault was a crime of violence based solely on the aggravated-assault label. To be a generic aggravated assault the offense must have as an element either the causing of serious bodily injury or the use of a dangerous weapon. Arizona aggravated assault can be committed without those elements, e.g. while the victim is physically restrained or her/his capacity to resist substantially impaired, causing any physical injury or placing the person in reasonable apprehension of physical injury or touching with the intent to injure, insult or provoke. The government conceded it could not prove the offense had as an element the use, attempted use or threatened use of force, presumably [it wasn't explained] because the assault could be committed by a limited amount of force or by causing injury with only reckless mens rea or causing fear-apprehension without threatening force.

Unpublished Decisions

U.S. v. Holcomb, 2010 WL 1242805 (4/1/10) (unpub'd) - The 2255 movant's claim that Begay required a different interpretation of the guidelines than was made at the time of his sentencing alleged only a non-constitutional error, (while a Chambers claim that the ACCA was wrongly applied to increase the maximum sentence was a constitutional due process claim). The movant was therefore not entitled to a certificate of appealability.

U.S. v. Wright, 2010 WL 1172606 (3/29/10) (unpub'd) - The 10th finds no abuse of discretion when the district court refused to consider the defendant's pro se letter complaining about the sentence because the defendant was represented by an attorney. Consequently, the defendant's protesting letter did not constitute a notice of appeal. As a result, the defendant's subsequent attempt to appeal was untimely.

U.S. v. Harrison, 2010 WL 1225617 (3/31/10) (unpub'd) - The 2255 movant's allegation that counsel told him he need not worry about the high sentence because it would all get corrected on appeal, and then failed to file a notice of appeal, was not detailed enough to state a claim of ineffective assistance of counsel.

Muniz v. Richardson, 10th Cir. No. 2229 (3/31/10) (unpub'd) - In a challenge to the New Mexico prison system, the 10th held that the fact that prisoners do not enjoy the food that is served and that they are subject to repeated TV programs as a harassment tool do not establish 8th Amendment violations.

Tenth Circuit Offers Training Program for Using the Electronic Record on Appeal

The Tenth Circuit is offering a training program on using Adobe's markup tools to review and manipulate an electronic record on appeal (ROA). The program will be held on Friday, April 23, 2010 from 10 a.m. to noon in Denver, Colorado, in the Byron White U.S. Courthouse training room. According to SueAnn Fitch, CJA Supervising Attorney, the training room has 16 computers with the necessary software installed, so attendees don't need to bring a computer or purchase anything to participate. However, there is room for only 16 attorneys.

She notes that, with very limited exceptions, ROAs are now being filed in electronic format in the 10th Circuit. Thus the ROA is no longer available in hard copy for CJA counsel to "borrow." However, she says, "The good news is that on-screen markup tools are far more efficient than all those little yellow stickies you've been placing all over transcripts and pleadings."

The trainers will be appellate attorney Antony Noble (http://noble-law.com/) and document management expert Richard Demarest (http://www.advocatesresources.com/). The program will be recorded for distribution, perhaps by a link held on the court's website or on DVD. Two general CLE credits will be applied for in all districts of the Tenth Circuit so that Tenth Circuit practitioners with offices outside the Denver area may be able to receive CLE credits from viewing the recorded program if their local Supreme Court authorizes home study programs.

Draft agenda:

Electronic Records:
- Examining the electronic record and determining its properties
- Examining the electronic record for bookmarks
- Determining whether the electronic record is searchable
- Combining different parts of the electronic record into one file
- Bookmarking the electronic record
- OCRing the electronic record
- Cataloging the electronic record
- Annotating the electronic record
- Collaboration with an electronic record
- Redacting information from an electronic record

Electronic Briefs:
- Converting an appellate brief to PDF format
- Extracting parts of the record for inclusion in the electronic brief
- Creating hyperlinks in an electronic brief
- Identifying, reviewing, and removing unwanted metadata from the electronic brief
- Identifying and removing computer viruses from the electronic brief

Participation in the live program is free, first-come, first-served and open first to 10th Circuit appellate CJA panel attorneys. Contact Ms. Fitch at SueAnn_Fitch@ca10.uscourts.gov to register.