Unpublished Decisions
U.S. v. McCarthy, 2010 WL 2413024 (6/16/10) (unpub'd) - The 10th found no ambiguity in the defendant's statement to the officers: "I don't want nothing to say to anyone," and his "no" response to the question "You don't have anything to say to anybody?" [despite the resulting double-negative], regardless of the defendant's heavy accent and tendency to mumble. The officers were obligated to end questioning. Instead, their further attempts to clarify the defendant's Miranda rights violated Miranda, even though they told him not to discuss the crime until he signed the Miranda waiver form. In dissent, Judge McWilliams argued that re-reading a detainee his Miranda rights does not in itself violate his right to remain silent.
U.S. v. Mutte, 2010 WL 2413139 (6/16/10) (unpub'd) - A release pending sentencing victory for a defendant represented by our NM CJA colleague Sam Winder. The 10th affirmed Judge Armijo's release of the defendant pending sentencing, even though the defendant was convicted of a crime of violence---assault resulting in serious bodily injury. The judge provided adequate justification for determining the defendant was not a present danger to the victim, i.e., he had lived in the same community as the victim for three years since the assault without incident and he had fully complied with all conditions. Judge Armijo properly identified exceptional reasons that justified release, including the lack of danger and the "unusual" fact that the defendant had already been convicted and punished in tribal court for the same incident that occurred 3 years ago.
U.S. v. Martinez, 2010 WL 2413022 (6/16/10) (Col.) (unpub'd) - The majority attempts to justify 10th precedent that Colorado felony menacing is a violent felony under the ACCA. See U.S. v. Herron, 432 F.3d 1127 (10th Cir. 2005). The majority says there is still the use of physical force or the threat thereof involved in using poison [?], a drug [?] or a dog in order to place the victim in fear. Interestingly, in Judge Briscoe's concurrence she chastises the majority for trying to justify the Herron decision, [perhaps because it's hard to justify?].
U.S. v. Chambers, 2010 WL 2413236 (6/16/10) (unpub'd) - It was okay for the officer to conduct a protective sweep of the defendant's SUV, where he made a move to grab one of his knives after the officer told him not to, even though the sweep was conducted after the defendant was removed from the SUV. A protective sweep is different from a search incident to arrest that might be invalid under Gant. The defendant here might have been returned to the vehicle at some point and the officers justifiably did not want the defendant to have easy access to weapons at that time.
U.S. v. Cook, No. 09-2152 (6/18/10) (unpub'd) - The defendant challenged Judge Johnson's response to the defendant's shackling as follows: "I'm going to leave that up to the marshals. They run security. I'm not a security expert. . . . Whether the defendant is shackled will be up to the marshals in charge of the proceedings and I'll delegate to the marshals how they want the seating to be." The 10th thought it was a "close" question whether the court impermissibly delegated discretion to the marshals. [The 10th didn't explain why it was close]. But any error was harmless because the jury couldn't see the shackles.
U.S. v. Beals, No. 09-6174 (6/18/10) (Okl.) (unpub'd) - Above-guideline-range sentence for supervised release violation in part so that the defendant could participate in RDAP, was not an abuse of discretion, even though the defendant would not be able to participate in RDAP. There were other fine substance- abuse programs the defendant could participate in while in prison.
U.S. v. Hargrove, 2010 WL 2399348 (6/16/10) (unpub'd) - It was not a violation of the defendant's right to cross to preclude cross of the witness regarding her refusal to provide her mental health records to the defense. The witness's anxiety disorder and being "visited by the deceased victims" did not affect her perception or recall and the defense was allowed to cross on those matters. For those same reasons, it was okay not to order the witness to submit to a psych exam. It was okay to admit the preliminary hearing testimony of a witness who was unavailable for trial, even though the defense, for strategic reasons and because it did not have full discovery at that time, may have questioned the witness differently then than it would now. It was okay to admit a gun that was not specifically tied to the shooting victim. "Jurors are not fools" and they were well aware of the limitations of the evidence. An indictment charging a § 924(c) violation relying on § 841 need not allege a drug type and quantity. Charging a § 924(j) capital charge and not § 924(c) was okay where the defendant did not challenge the indictment until well after the trial was over and there was no prejudice.
Gardner v. Garner, 2010 WL 2413238 (6/17/10) (unpub'd) - Utah's clemency proceedings were not wholly arbitrary and capricious and so they were not violative of due process, even though the AG both advised the clemency board and argued for death on behalf of the state, There is no right to effective assistance of counsel at a clemency proceeding. And so the 10th helped to clear the way for death by firing squad for Mr. Gardner. By the way, Justices Stevens and Breyer subsequently voted for a stay of execution, but not the other 7.
U.S. v. Mutte, 2010 WL 2413139 (6/16/10) (unpub'd) - A release pending sentencing victory for a defendant represented by our NM CJA colleague Sam Winder. The 10th affirmed Judge Armijo's release of the defendant pending sentencing, even though the defendant was convicted of a crime of violence---assault resulting in serious bodily injury. The judge provided adequate justification for determining the defendant was not a present danger to the victim, i.e., he had lived in the same community as the victim for three years since the assault without incident and he had fully complied with all conditions. Judge Armijo properly identified exceptional reasons that justified release, including the lack of danger and the "unusual" fact that the defendant had already been convicted and punished in tribal court for the same incident that occurred 3 years ago.
U.S. v. Martinez, 2010 WL 2413022 (6/16/10) (Col.) (unpub'd) - The majority attempts to justify 10th precedent that Colorado felony menacing is a violent felony under the ACCA. See U.S. v. Herron, 432 F.3d 1127 (10th Cir. 2005). The majority says there is still the use of physical force or the threat thereof involved in using poison [?], a drug [?] or a dog in order to place the victim in fear. Interestingly, in Judge Briscoe's concurrence she chastises the majority for trying to justify the Herron decision, [perhaps because it's hard to justify?].
U.S. v. Chambers, 2010 WL 2413236 (6/16/10) (unpub'd) - It was okay for the officer to conduct a protective sweep of the defendant's SUV, where he made a move to grab one of his knives after the officer told him not to, even though the sweep was conducted after the defendant was removed from the SUV. A protective sweep is different from a search incident to arrest that might be invalid under Gant. The defendant here might have been returned to the vehicle at some point and the officers justifiably did not want the defendant to have easy access to weapons at that time.
U.S. v. Cook, No. 09-2152 (6/18/10) (unpub'd) - The defendant challenged Judge Johnson's response to the defendant's shackling as follows: "I'm going to leave that up to the marshals. They run security. I'm not a security expert. . . . Whether the defendant is shackled will be up to the marshals in charge of the proceedings and I'll delegate to the marshals how they want the seating to be." The 10th thought it was a "close" question whether the court impermissibly delegated discretion to the marshals. [The 10th didn't explain why it was close]. But any error was harmless because the jury couldn't see the shackles.
U.S. v. Beals, No. 09-6174 (6/18/10) (Okl.) (unpub'd) - Above-guideline-range sentence for supervised release violation in part so that the defendant could participate in RDAP, was not an abuse of discretion, even though the defendant would not be able to participate in RDAP. There were other fine substance- abuse programs the defendant could participate in while in prison.
U.S. v. Hargrove, 2010 WL 2399348 (6/16/10) (unpub'd) - It was not a violation of the defendant's right to cross to preclude cross of the witness regarding her refusal to provide her mental health records to the defense. The witness's anxiety disorder and being "visited by the deceased victims" did not affect her perception or recall and the defense was allowed to cross on those matters. For those same reasons, it was okay not to order the witness to submit to a psych exam. It was okay to admit the preliminary hearing testimony of a witness who was unavailable for trial, even though the defense, for strategic reasons and because it did not have full discovery at that time, may have questioned the witness differently then than it would now. It was okay to admit a gun that was not specifically tied to the shooting victim. "Jurors are not fools" and they were well aware of the limitations of the evidence. An indictment charging a § 924(c) violation relying on § 841 need not allege a drug type and quantity. Charging a § 924(j) capital charge and not § 924(c) was okay where the defendant did not challenge the indictment until well after the trial was over and there was no prejudice.
Gardner v. Garner, 2010 WL 2413238 (6/17/10) (unpub'd) - Utah's clemency proceedings were not wholly arbitrary and capricious and so they were not violative of due process, even though the AG both advised the clemency board and argued for death on behalf of the state, There is no right to effective assistance of counsel at a clemency proceeding. And so the 10th helped to clear the way for death by firing squad for Mr. Gardner. By the way, Justices Stevens and Breyer subsequently voted for a stay of execution, but not the other 7.
posted by Anonymous at 1:45 PM
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