Circuit Snippets

A defendant charged with growing marijuana on his farm was deprived of his Sixth Amendment right to present a defense by the trial court's evidentiary rulings, the 9th Circuit held. The court denied the defendant's Rule 16 request to compel to government to disclose information about the marijuana-growing activities of Mexican drug trafficking organizations and ruled that the defendant could not bring up the issue at trial. Defendant sought to prove that a Mexican organization -- and not him -- was responsible. The district court had considered the proposed evidence to be irrelevant, but the Circuit Court disagreed, saying that evidence that a Mexican drug trafficking organization was responsible -- any such organization -- made it less likely the defendant was responsible. US v. Stever, No. 09-30004 (9th Cir. 5/4/10)

Where one user of a computer consents to its seizure, the fact that the other user objects does not make the seizure and search of the computer unlawful, the Third Circuit held. The Court disagreed with the 9th Circuit's reasoning that Georgia v. Randolph, 547 US 103 (2006) (holding one resident's objection to a search will override another resident's consent), extended beyond searches of homes. US v. King, No. 09-1861 (3d Cir. 4/30/10)

A cell phone owner has a reasonable expectation of privacy in the call log stored on his phone, but the search was ok because the phone was in plain view in the defendant's car when he was arrested. State v. Boyd, No. SC 17719 (Conn. 4/27/20)

When a defendant dies during his direct appeal, his conviction, sentence, and also any restitution order are abated. US v. Rich, No. 08-30153 (9th Cir. 5/3/10)

A defendant need not know that a license is required to do business with Iran before being convicted of willfully violating the trade embargo, the 9th Circuit held. All the defendant needs to know is that his conduct was unlawful. US v. Mousavi, No. 08-50454 (9th CIr. 5/5/10)

A person accused of illegally reentering the United States has been previously "removed" even if he was deported to the wrong country, the 7th Circuit held. In this case, the El Salvadoran defendant was removed to Mexico, and not El Salvador. 8 USC 1326 does not require removal in a specific manner or to a specific place, the 7th Circuit said. US v. Sanchez, No. 09-2666 (7th Cir. 4/28/10)

A lawyer submitting an Anders brief is an officer of the court who is essentially offering an expert opinion that the appeal is devoid of merit. Accordingly, the court must have faith that the attorney reviewed the entire record. Where appointed appellate counsel failed to include any mention of pretrial proceedings or the conduct of the defendant's five-day trial, Anders brief was not sufficient, saying "it will be the unusual case when a lawyer representing a defendant convicted at trial cannot identify anything but sentencing issues to include in an Anders submission." The attorney's motion to withdraw was denied and she was ordered to submit a new brief. US v. Palmer, No. 09-2558 (7th Cir. 4/12/10)

The prosecutor did not commit any misconduct when, during defendant's trial for unlawful possession of firearms, the prosecutor repeatedly referred to the hollow-tipped bullets and extended magazine found with the firearms; the references were properly allowed to provide background and context for the charged crime. US v. Byers, No. 09-1917 (8th Cir. 4/28/20)

A California conviction for negligent discharge of a firearm is not a crime of violence for purposes of enhancing a defendant's sentence under USSG 2K2.1(a), the 9th Circuit held. US v. Coronado, No. 09-50154 (9th Cir. 5/3/10)

Despite Chambers, Kansas Offense of Fleeing Cops a Crime of Violence Under USSG § 4B1.2

US v. McConnell, No. 09-3036, 5/19/10 - Fleeing or eluding cops, in violation of Kan. Stat. Ann. § 8-1568, is a crime of violence under USSG § 4B1.2. The Tenth had already held as much in regard to a similar Utah statute in US v. West, 550 F3d. 952 (2008), but the defendant claimed that the Supreme Court’s decision in Chambers v. US, 129 S.Ct. 687, overruled it. The Tenth Circuit rejects the argument, saying violation of the statute involves active conduct that presents a serious potential risk of physical injury to another because it applies to disobedient drivers who pose the threat of direct confrontation with the police, who directly observe the conduct, that endangers the cops, the vehicle’s passengers and bystanders.

Chiropractic Board President Entitled to Qualified Immunity in Connection with Alleged Illegal Administrative Search; District Court Reversed

Lewis v. Tripp, ___ F.3d ___ , 2010 WL 1949030(10th Cir. 2010).

This decision may be of more interest to civil rights practitioners. The Court of Appeals reverses denial of qualified immunity to respondent chiropractic board president on claim that he was involved in the allegedly illegal administrative search of petitioner’s office. It finds that the record is devoid of sufficient facts upon which a jury could decide that the respondent was involved in any of the illegal activities–no evidence that he directed his assistant to prepare and serve the administrative warrant. At most, there is evidence that respondent wished to investigate alleged problems with petitioner, but it cannot be assumed that respondent meant to or did set about doing so in an illegal manner.

Judge Briscoe dissented, saying the Court should not engage in the fact finding it did–the district court adequately found that the jury could decide that respondent directed the actions of others in executing the warrant. Even if the Court could review the facts, she disagreed with the majority’s interpretation of them.

US v. Campbell, -- F.3d --, 2010 WL 1839028 (10th Cir. 5/10/10)(Kan). Affirmance of denial of suppression motion. COA bypasses the "troublesome issue" of whether there was pc for search warrant seeking evidence at Mr. Campbell's home of his criminal activities and his Crips membership, in violation of RICO, because the executing officers acted in the good faith belief that the magistrate properly authorized the warrant. Mr. Campbell did not meet his burden to show that officers provided the magistrate with deliberately misleading information or information provided with reckless indifference to the truth. Officers' belief that there was pc was not "entirely unreasonable" because the affidavit was not "devoid of factual support." There was a "minimally sufficient nexus between the illegal activity and the place to be searched." Even if the information was so stale as to fail to establish pc re: defendant, it was good enough to justify officers' good faith reliance. There was adequate info re: the cooperating witness' reliability, veracity, and basis of knowledge. Applying the rationale of US v. Herring, 129 S.Ct. 695 (2009), the COA concludes that while there was some evidence of an arguably negligent breakdown in officers' communication, it did not meet the Herring-endorsed standard of "recurring or systemic negligence" that must be met to negate good faith.

Good Faith Saves Search

US v. Campbell, -- F.3d --, 2010 WL 1839028 (10th Cir. 5/10/10)(Kan). Affirmance of denial of suppression motion. Court of Appeals bypasses the "troublesome issue" of whether there was probable cause for a search warrant seeking evidence at Mr. Campbell's home of his criminal activities and his Crips gang membership, in violation of RICO, because the executing officers acted in the good faith belief that the magistrate properly authorized the warrant.

Mr. Campbell did not meet his burden to show that officers provided the magistrate with deliberately misleading information or information provided with reckless indifference to the truth. The officers' belief that there was probable cause was not "entirely unreasonable" because the affidavit was not "devoid of factual support." There was a "minimally sufficient nexus between the illegal activity and the place to be searched." Even if the information was so stale as to fail to establish probable cause regarding the defendant, it was good enough to justify officers' good faith reliance. There was adequate info regarding the cooperating witness' reliability, veracity, and basis of knowledge.

Applying the rationale of US v. Herring, 129 S.Ct. 695 (2009), the COA concludes that while there was some evidence of an arguably negligent breakdown in officers' communication, it did not meet the Herring-endorsed standard of "recurring or systemic negligence" that must be met to negate good faith.

Lesser-included Instruction Should Have Been Given; State Capital Habeas Petitioner Gets Relief

Phillips v. Workman, 2010 WL 1882313 (10th Cir. 2010).

Tenth Circuit grants habeas relief in Oklahoma capital case. Defendant was convicted of first-degree malice aforethought murder after he stabbed a teenager in a parking lot with a pocketknife for no apparent reason other than racial animosity, intoxication, and, possibly, mental illness. There was some question before trial about the defendant's competence. The defendant sought to present this evidence in support of an instruction on the lesser-included offense of second-degree murder. However, the Oklahoma state court refused to allow the defendant to present evidence of his emotional state and history of abuse by his father, agreeing with the state that it was mitigation evidence that could only be proffered at the sentencing phase, and refused an instruction on second-degree depraved mind murder. He was convicted of first-degree murder and sentenced to death.

The Oklahoma courts on direct appeal and habeas proceedings affirmed the conviction. In federal court, the defendant argued that the state courts' decision was contrary to clearly established federal law, specifically Beck v. Alabama, 447 US 625 (1980). The district court agreed, but the Tenth reversed, holding that the OK courts and the district court failed to properly apply Beck:

1. Depraved-mind second-degree murder was and now is a lesser-included offense of first-degree murder under Oklahoma law (the Tenth spends some time on the meanderings of the OK courts on this issue).

2. The Tenth noted that, in Beck, the Court held that “a sentence of death [may not] constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict.” In this case, the OK courts improperly focused on the evidence that supported the conviction of first-degree murder, and failed to acknowledge the evidence that would have supported the lesser-included offense.

3. There was evidence from which a jury could have rationally concluded that Defendant was severely emotionally disturbed and not had the requisite mens rea for first-degree murder.

Accordingly, relief was granted with instructions that the district court conditionally grant the writ, subject to the state's right to retry the defendant within a reasonable time.