Wednesday, August 11, 2010

No 4th Amendment Seizure Where Civil Rights Plaintiff Fled; No Malicious Prosecution Where Evidence Supported Gun Charge

Brooks v. Gaenzle, ___ F.3d ___ , 2010 WL XXX, No. 09-1489 (10th Cir. 2010) (CO).
In this 42 USC § 1983 Civil Rights case, the court upholds the district court’s grant of summary judgment to the defendant cops/law enforcement entities on the petitioner’s Fourth Amendment claims of unreasonable use of force and malicious prosecution, and denies pendent jurisdiction on related state tort claims, reversing the district court on the state claims and dismissing them without prejudice.

Petitioner and another were suspects at the scene of a burglary in progress. A suspect inside the house shot a gun at police. Petitioner was seen fleeing, was told to stop, and was shot in the back. He got away and was apprehended a few days later. The other suspect also fled and died in a later gun battle with the police, with the gun used at the burglary. Petitioner was convicted of most charges relating to the burglary, but acquitted of having the gun in his possession.

He brought the civil § 1983 action for the Fourth Amendment violation and resulting injury under a theory of excessive force, and for maliciously prosecuting him for possessing the gun.

The COA upheld the district court's determination that there was no Fourth Amendment seizure. In spite of police show of authority and use of deadly force, and in spite of the bullet hitting the petitioner, he did not stop, he fled, and he therefore was not seized (following the general rule of Hodari D.). The COA discusses whether momentarily stopping a person who was injured raises a Fourth Amendment seizure issue, but determines that there are no facts of a momentary stopping.

The COA also upholds the district court determination that P failed to show, on the malicious prosecution count, that but for the defendants’ alleged lies that he had a gun, there would have been no probable cause to charge him with the gun. There was sufficient other evidence to charge him with a gun: other witnesses who saw him with a gun earlier in the day; his own later retracted statement that he had a gun that day; his admissions to others that he shot at a police officer during the burglary Finally, his vague claim of a conspiracy to violate his civil rights did not raise a triable claim.

Successive 2241 Petitions Not Subject to AEDPA's Prior Authorization Requirement

Stanko v. Davis, ___ F.3d ___ , 2010 WL XXX, No. 09-1073 (10th Cir. 2010) (CO)
Habeas arcania. There are two kinds of federal habes–28 USC § 2241, the traditional habeas petition, and 28 USC § 2255–a motion to vacate etc. a sentence. The ability to file second or successive habeas actions is closely regulated. Under AEDPA, a state habeas § 2254 petitioner and a federal § 2255 “mover” must get circuit approval for filing a successive action. Without such authorization, the district court has no jurisdiction over the action.

Construing the language of AEDPA and the types of actions pursued under § 2241, the COA determined that the limiting AEDPA provision, § 2244(a), does not apply to the traditional § 2241 federal habeas petition. In this case, petitioner brought his action under 2241, claiming that the BOP wrongly denied him consideration for a reduced sentence if he completed a drug-treatment program. His claim was first denied in one federal district, and then when he was moved to Colorado, he brought the same general claim against the BOP in federal district court. Pre-AEDPA principles that govern determinations of whether subsequent habeas petitions under § 2241 will be considered “successive” governed this case. This was a successive abusive petition. Although the district court erred in dismissing the petition without notice to the petitioner, the error was harmless, because the COA allowed him to make his cause and prejudice showing on appeal (cause for not raising all claims in the first petition). He did not make that showing so the petition was correctly dismissed as successive.
A couple of 10th Circuit cases and S. Ct. news. First, the 10th:

Dodds v. Richardson, 2010 WL 3064002 (8/6/10) (Okl) (Published) - The 10th affirms a denial of qualified immunity in the context of a summary judgment where the sheriff had a policy of refusing to allow a person arrested for a felony to post bond until the arrestee was arraigned. As a result of the policy, the plaintiff spent a weekend in jail in violation of the due process right to post bail and be freed from detention once bail is set. The plaintiff was unnecessarily detained without a legitimate goal. The sheriff could not rely on the fact that the policy had been set by a prior sheriff, had been practiced for a long time, was initiated by the court clerk's office and the district courts and he did not personally order the particular plaintiff's over-detention. The existence of the policy established the "affirmative link" between the plaintiff's detention and the sheriff and the deliberate indifference of the sheriff, given the sheriff's responsibility under state law to run the jail and accept bail. The S. Ct's recent decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), did not eliminate supervisor liability under these circumstances. The constitutional law on the matter was clearly established at the time of the detention. The sheriff failed to adequately raise the "extraordinary circumstance" argument that he reasonably relied on the court clerk and district court policies.

Lopez v. Zenon, 2010 WL 3069687 (8/6/10) (Colo) (unpub'd) - In a habeas case, it was not unreasonable for the state court to find the petitioner's statement voluntary under the following circumstances. The mother held a loaded gun to the petitioner's head and threatened to kill him, herself and his younger sister [presumably not in that order] unless he went to the police station and talked to the investigating officer about the fatal shooting of the mother's husband. Officers, along with the mother, interrogated the petitioner on five consecutive days. The officer began the first interrogation by saying: "your mother has been goin' through some hell. And she's gettin' to the point where she's homicidal/suicidal." The mother was very active in asking questions the first two days. On the second day, an officer showed the petitioner a picture of his deceased stepfather. The 10th assumed the mother acted as a state agent. The 10th supported the voluntariness determination by pointing to the following: the repeated Miranda warnings and advice that he was free to leave; the petitioner stayed at his grandmother's house every night; he only confessed on the later days when his mother did not actively participate; and he remained "cool, calm and collected."

Springer v. Albin, 2010 WL 3035908 (8/5/10) (Okl) (unpub'd) - The 4th Amendment does not protect the interest in regaining possession of one's lawfully-seized property. Consequently, the plaintiff could not get 4th Amendment relief for officers stealing $2,000 out of $19,000 lawfully seized from the plaintiff's house. [The other $17,000 was returned]. Maybe the plaintiff could have sought relief based on deprivation of property without due process, but he did not make that allegation.

S. Ct. news:

In re Khadr, 2010 WL 3064639 (8/4/10) (per curiam) - The S. Ct. refuses to grant a writ of mandamus to prevent a trial by military tribunal of a Guantanamo Bay detainee. The defendant has an adequate alternative of challenging the Military Commissions Act on appeal after a final judgment.

US v. Mullins and US v. Edwards, 2010 WL 2947873 (Colo), 7/29/10 - Convictions and sentence on wire fraud and related charges affirmed. Defendants were real estate agents in Denver who were part of a scheme to defraud the Federal Housing Administration by obtaining mortgages based on bogus documentation. Held: 1) ten year statute of limitations for wire fraud that “affects a financial institution” applied; all that need be proven is that the scheme expose a financial institution to a new or increased risk of loss, and making loans to unqualified borrowers does that; 2) evidence was sufficient to show that interstate transmission was reasonably foreseeable, given that the defendants knew that FHA headquarters are in Maryland; 3) no abuse of discretion in limiting cross where defendant was afforded plenty of room in crossing witness about cooperation agreement with government; 4) making a false statement to HUD investigators was not a lesser included offense of wire fraud; 5) even assuming right to counsel continued after first indictment on different charges was dismissed, it applied only to the dismissed charges; 6) no error in not giving unanimity instruction that jury be unanimous as to exactly whom defendant aided and abetted; 7) loss calculation not clearly erroneous when based on outstanding loan balance minus foreclosure sale proceeds; 8) no plain error in failure to exclude one transaction from loss calculation; and 9) district court did not shift burden of proof on restitution amount merely by setting it “in the absence of evidence to the contrary.”

US v. Martin, 2010 WL 2977721 (Kan), 7/30/10 - Denial of motion to suppress in this felon in possession case affirmed. Defendant was a suspect in a shooting. Cops went to defendant’s girlfriend’s apartment building four hours after the shooting looking for him. The door was locked, but, as luck would have it, defendant and his girlfriend happened to be leaving and, as they opened the door, they encountered the cops. Defendant retreated into the atrium. Cops told him to put his hands on the wall. Defendant did not, but rather turned and refused to show his hands. He also said he had something on him, which the cops took to mean he had a gun. Cops went in, grabbed defendant, cuffed him, patted him down and got the gun and a clip. Even assuming the atrium was part of the residence, cops had probable cause to arrest him because he fit the description of the shooter and exigent circumstances - officer safety - to justify the warrantless entry, which the 10th described as an “extremely modest” intrusion.


US v. Sierrra, 2010 WL 3069712 (Utah), 8/6/10 - Conviction on meth charges affirmed. Defendant and his brother were selling to a female snitch. She picked their photos out of photo arrays. The cops did not preserve the three-photo array from which she identified defendant. Defendant’s motion to suppress the identification was denied, the district court finding the identification reliable, even though the arrays themselves were unduly suggestive, and no Brady violation. Snitch wouldn’t identify defendant at trial, so the government got into evidence her photo array identifications. Held: 1) the photo array identification evidence was sufficiently reliable; 2) losing the photo array did not present a Brady issue, but rather a spoliation issue governed by Youngblood and Trombetta, which was reviewed only for plain error; no error at all because there was no evidence the government acted in bad faith; and 3) evidence sufficient to support conviction.

Wednesday, August 04, 2010

Unpublished Decisions

U.S. v. Rivera-Carrera, 2010 WL 2926543 (7/28/10) (Wyo) (unpub'd) - The 10th acknowledged it was doubtful a conspirator's explanation of the players involved in a conspiracy to an unconnected bystander was "in furtherance" of the conspiracy under the co-conspirator-hearsay rule. But the error was harmless. Also, the d. ct.'s finding that the defendant's testimony was "at total variance from that of other witnesses" and represented a "total denial" did not constitute the finding of "wilful lying" required to justify a perjury/obstruction of justice enhancement. But the "sweeping and material nature of the defendant's false denials" established the judge correctly applied the enhancement.

U.S. v. Weiss, 2010 WL 2911718 (7/27/10) (Colo) (unpub'd) - The 10th suggests it would not be witness tampering in violation of 18 U.S.C. § 1512(b) to suggest to witnesses that they not disclose evidence to investigators. But here the government proved the defendants suggested the witnesses lie. Because the tampering regarding the fraud offenses took place after the guidelines got worse for fraud, it was not a violation of the Ex Post Facto Clause to apply the newer, worse guidelines, even though the frauds took place before the guideline worsening.

U.S. v. Cooper, 2010 WL 2982931 (7/30/10) (Okl) (unpub'd) - Even though appeal waivers are not supposed to be enforceable when the sentence is above the statutory maximum, the appeal waiver waived the right to argue the sentence was above the stat max on the grounds that the d. ct. applied the wrong stat max. The defendant "clearly understood" that the d. ct. could impose a sentence above 20 years if it found the defendant's prior conviction increased the stat max to 40 years under 18 U.S.C. § 2252(b)(1). The defendant waived his right to argue on appeal that the conviction was not a qualifying conviction under § 2252(b)(1).

Mortgage Fraud Defendant Raises Numerous Issues, Conviction and Sentence Affirmed

U.S. v. Mullins, 2010 WL 2947873 (7/29/10) (Colo) (Published) - Another lengthy opinion in a white-collar case, but affirmance on all issues. This is another case where the defendants helped to deceive lenders about the financial wherewithal of lower-income home buyers.

(1) The 10-year, rather than the usual 5-year statute of limitations, applied because the offenses "affected a financial institution" under 18 U.S.C. § 3293(2), because the defendants exposed the banks to a new or increased risk of loss, even though the banks may not have incurred an actual loss.

(2) There was sufficient evidence to prove the defendants could have reasonably foreseen that interstate wire communications would be used as a result of their offenses [assuming without deciding such a mens rea had to be proven]. The government did not have to prove the defendants anticipated any particular wire communication. It was enough that the defendants should have known the FHA in D.C. would be contacted.

(3) The district court did not deny the defendant her right to confrontation by precluding cross of a government witness concerning whether any tax evasion charges had been filed against him, in an effort to show the government agreed not to prosecute him on the charges in exchange for his testimony. The defense got to ask all sorts of other impeaching questions about the breaks the government gave the witness, including that the government said he didn't have to pay taxes he owed. [The 10th noted, without deciding, an intra-circuit conflict as to whether Confrontation Clause questions are reviewed de novo or for an abuse of discretion].

(4) Making a false statement to HUD was not a lesser-included offense of wire fraud and so the defendant was not entitled to a lesser-included offense instruction. It didn't matter if the same evidence in this case would be used to prove each offense. Only the elements matter and the elements of the HUD offense were not a sub-set of the fraud offense. (5) Assuming the defendant had a right to counsel under the 6th Amendment after her charges were dismissed and before new charges were filed, the CI's questioning of the defendant did not violate the 6th Amendment because the defendant ultimately was not convicted of the charges in the initial indictment, even though they were factually related to the offenses the defendant was convicted of. Government counsel did not violate any ethical codes by sending the CI to question the defendant because government counsel did not know she was represented by an attorney.

(6) The jury did not have to be unanimous as to which person the defendant aided and abetted.

(7) The district court did not clearly err when it determined the loss the defendant caused based on the sales prices of the homes, even though the sales prices were much lower than the appraisals a year earlier. The precipitous reduction in value was reasonably foreseeable.

(8) The d. ct.'s apparent oversight in counting one refinanced property in the final loss calculation but excluding two other refinanced properties, was the defendant's fault for not objecting. The defendant could not prove under the plain error standard of review that the error would have made a difference in her sentence, even though it put her in a higher offense level, since the d. ct. did give her a "generous" downward variance.

(9) The district court's statement that it determined a particular forfeiture amount, "absent contrary evidence," did not indicate it wrongly put the burden of proof on the defendant.

Defendant Not Seized Until Cuffed

U.S. v. Martin, 2010 WL 2977721 (7/30/10) (Kan) (Published) - An affirmance of denial of a suppression motion. The officers had not seized the defendant until they placed him in handcuffs because, before that time, they had ordered him to place his hands on the wall, but instead he dropped his hands out of sight and said he had "something on" him. So, whether the seizure is proper must be judged from the time of the handcuffing, not at the time of the dubious order.

By the time of the handcuffing, the officers had probable cause to arrest the defendant where: (1) 4 hours earlier someone had shot another person; (2) the assailant fled with the weapons he used; (3) the assailant was wearing a fur-lined winter coat; (4) the assailant was an African-American male who was called "Kalil" an aka of a "Michael Johnson"; (5) Johnson was known to be the boyfriend of Ora Hudnall; (6) she lived in a particular apartment building; (7) the defendant they encountered in that building's atrium was with Ms. Hudnall, was African-American and wearing a fur-lined coat and gave his name as Michael Martin; and (8) the defendant indicated he was carrying a gun ["something"]. There were exigent circumstances to justify entering the building to arrest the defendant, [assuming he had a reasonable expectation of privacy in the atrium] for officer safety because the man they confronted had likely shot someone else earlier in the day, claimed to have a gun and dropped his hands out of sight in violation of the officers' orders. And, besides, the intrusion was extremely modest---just a short distance into the atrium. And, there should be a far greater reluctance to fault the police for making a warrantless arrest when they are out investigating, rather than making a long-planned arrest.
U.S. v. Hasan, 2010 WL 2510727 (6/23/10) (Okl.) (Published) - After a prior remand from the 10th, the d. ct. failed to apply the proper law in determining whether the grand jury proceedings complied with the Court Interpreters Act ("CIA"). The d.ct. mistakenly focused on the defendant 's communication with his employers, students and wife in English, when the question under the CIA is whether he spoke primarily a language other than English, in this case, Somali. If on remand the d. ct. determined the defendant's primary language was Somali, the d. ct. must then decide whether the defendant was so inhibited in his ability to communicate and comprehend before the grand jury that the proceedings were fundamentally unfair.

The 10th then discussed whether it should decide the evidence-sufficiency question in this perjury case or leave that for another day, as it had on the first appeal. But this time it decided to address the question. The defendant testified before 2 grand juries as to whether he gave false statements to a federal agent in justifying his asylum-from-Somalia petition. The 10th relied heavily on the fact it was applying plain error review because the defendant did not make the particular insufficiency arguments he made on appeal. It found that it was not clear or obvious error for the d. ct. to find sufficient evidence that the defendant made irreconcilably contradictory statements before the different grand juries that his brother had been shot to death and that the brother had been killed in a car wreck and that his sister was the victim of an attempted rape and that she was not. The 10th reviewed a particular part of the defendant's grand jury testimony in light of his other testimony. It was also not an obvious error to find evidence establishing the purpose of the grand jury, even though there was no testimony from anyone witnessing the grand jury proceedings. And the misstatements were material, even though the exact topics concerning which the defendant supposedly contradicted himself were not previously discussed with the agent. The grand jury topics were relevant to a subsidiary issue because the agent had asked the defendant about physical harms suffered by the defendant and his family.

Narotzky v. Natrona County Memorial Hospital Board of Trustees, 2010 WL 2510659 (6/23/10) (Published) - The Medical Center's search of the medical organization's ("CWN") lockers at the Center was reasonable in its inception and scope. The Center had legitimate grounds to suspect its property might be in their lockers: (1) an inventory tech concluded surgical instruments were missing; (2) a surveillance tape showed CWN personnel leaving with various equipment, bags and boxes; and (3) there was a bad relationship between CWN and the Medical Center. And the Medical Center tried to contact CWN though e-mail and phone without success.

U.S. v. Quaintance, 2010 WL 1981028 (6/28/10) (Published) - In this Religious Freedom Restoration Act case the 10th sua sponte decided to publish the opinion, which addresses the sincerity issue and was summarized in a previous update.

United States v. Reniger, ___ F.3d ___ , 2010 WL 2747267 (10th Cir. 2010) (Ok.)
COA upholds district court decision that an adequate nexus between evidence of crime and location to be searched was shown by tracing an Internet Protocol address (IP) to the residence with which that IP was associated, to support probable cause for a search warrant for child pornography. Trawling FBI agents found someone with name “Renieger” posting child porn on a P2P site, got the IP address, went to the provider with a warrant, got a street address for user Reniger for that IP, confirmed that Reniger lived at that address, and put all of this in a search warrant affidavit, plus info about how computers work and computers and child porn.

Jones v. Jones, 2010 WL 2511541 (6/23/10) (Okl.) (unpub'd) - This case reveals a scary way to avoid Crawford. The 10th held it was not unreasonable for the state court to determine that the prosecutor's cross of the defendant about the co-defendant's statements incriminating the defendant were not for the truth of the matter asserted but only to demonstrate the defendant had a motive to blame the co-defendant.

U.S. v. Wiley, 2010 WL 2508796 (6/22/10) (Okl.) (unpub'd) - The 10th upholds the enhancement for possessing a firearm in connection with another felony offense under § 2K2.1(b)(6). The defendant shot a neighbor's pit bull after the dog bit his 8-year-old son. The d. ct. could properly conclude the defendant was not entitled to the affirmative abating-a-nusiance defense because, although there was evidence the dog's owner had not previously addressed the dog's repeated misbehavior, the owner had agreed to address the problem after the defendant's son was bitten and there was no evidence the owner had previously agreed to address the problem and didn't do as he agreed.

U.S. v. Wood, 2010 WL 2530732 (6/24/10) (Ut.) (unpub'd) - The 10th disagrees with the 6th Circuit and holds that a defendant may endeavor to obstruct or impede "the broad and continuously operating" tax code in violation of 26 U.S.C. § 7212(a), whether or not he or she was aware of any pending IRS action or investigation. The defendant presented a plausible argument that the d. ct. erred when its instructions indicated a failure to file a tax return is enough to violate § 7212(a). But, unlike when the issue has been preserved and the question is whether it is impossible to tell on which ground the jury selected a basis for the verdict, under plain error review the question is whether there is a reasonable probability the jury would have reached a different result if given a correct instruction. The defendant could not meet that test because the evidence was so strong. The restitution amount was okay, even in the absence of a prior definitive determination of the amount of taxes owed. But the d. ct. plainly erred when it imposed an above-guideline-range fine without explaining the reason for the variance and why the PSR's conclusion that the defendant was unable to pay a fine was wrong and why it discounted the government's recommendation of a low-end fine.

U.S. v. Gehringer, 2010 WL 2676362 (7/7/10) (Kan.) (unpub'd) - The 10th abides by its old precedent and rejects the argument based on U.S v. Polizzi, 549 F. Supp. 2d 308 (E.D.N.Y. 2008), that the jury should be informed of the mandatory minimum sentence the defendant faces.

Gonzales v. Tapia, 2010 WL 2508600 (6/22/10) (unpub'd) - This case is just interesting for the 10th's sniping at the N.M. district court clerk's office for filing a pro se notice of appeal a day after receiving it, thus making it appear the appeal was late and "leading to unnecessary confusion and delay."

Robertson v. Roberts, 2010 WL 2760591 (7/14/10) (Kan.) (unpub'd) - Officers were not required to remove themselves from the petitioner's presence when he invoked his right to counsel, but then continued to blab about the crime he was arrested for. The post-invocation, spontaneously-initiated statements could be used against the defendant.

U.S. v. Howell, 2010 WL 2508799 (6/22/10) (Okl.) (unpub'd) - Not a particularly useful case because it doesn't go into any details, but it is one of the rare examples of a remand for an evidentiary hearing in a case seeking collateral relief. The 10th concludes the allegations were sufficient to establish the entitlement to relief for ineffective assistance of counsel and, in particular, notes the closeness of the case on the question whether the movant was linked to the place where meth was produced.

U.S. v. Celio, No. 09-1505 (7/16/10) (Colo.) (unpub'd) - The d.ct. did not give the 2255 movant sufficient guidance for complying with Rule 8's short-and-plain-statement requirement. Simply reciting the rule and admonishing the movant to be clearer was not enough. The court should have advised that the movant had to explain what was done to him, when it was done, how he was harmed and what specific right was violated

Thurston v. Chester, 2010 WL 2747501 (7/13/10) (Kan.) (unpub'd) - Unemployed inmates are not exempt from making their agreed-to Inmate Financial Responsibility Program payments. The payments can be taken out of funds the family gave the inmate.

Guilty Plea Not Involuntary Despite Erroneous Info

Platta v. Janecka, 2010 WL 2812834 (7/19/10) (unpub'd) - It was not enough to establish the petitioner's guilty plea was involuntary or unintelligent when he alleged counsel told him that under New Mexico law he would get 50 % off for good time when in fact he only got 15 % off for good time.

Above-Guideline Sentence for Bank Robbery Affirmed

U.S. v. Redmond, 2010 WL 2881515 (7/23/10) (unpub'd) - Affirmance of an above-guideline-range bank robbery sentence. The district court varied from 125 months to 180 months by running 55 months of a sentence for one of the bank robberies consecutively to the others. It does not seem as though the district court realized it was going above the range, which had already accounted for the multiple counts by virtue of the grouping rules. The district court simply relied on 18 U.S.C. § 3584(b), which permitted consecutive sentences. The 10th saw no double-counting problem because the statute is different from the guidelines. The sentence was substantively reasonable due to the "especially serious and dangerous nature" of the robberies in that they were committed during business hours [wow, that hardly ever happens], the defendant's bad criminal record and his likelihood of recidivism. The 10th only reviewed the lack of notice of an upward variance for plain error because counsel had not objected on that ground or requested a continuance. Under Irizarry v. U.S., 128 S. Ct. 2198 (2008), no notice was required because the defendant had sufficient notice by virtue of his plea agreement and plea hearing in which the possibility of consecutive sentences was mentioned and the d. ct. gave the defendant a chance to respond to the announced sentence and counsel did not object to lack of notice.

State Habeas Petitioner's Right to Due Process Were Violated

Jackson v. Whetsel, 2010 WL 2881518 (7/22/10) (unpub'd) - Victory for an accused in a habeas case. The Oklahoma Court of Criminal Appeals ("OCCA") violated the petitioner's right to due process when it held there was insufficient evidence to support the defendant's conviction for making an indecent proposal to a minor to have sexual relations with another person [when the petitioner only asked her to touch herself], but ordered the trial court to convict the petitioner of soliciting the minor to perform obscene acts. The new offense was not a lesser-included offense of the charged offense and so the OCCA had unconstitutionally convicted the petitioner of an offense concerning which he had not been tried. The petitioner did not have to go back to state court to exhaust his claim because the OCCA had already decided the issue he raised and the lower courts could not disagree with the highest criminal court in Oklahoma. The 10th refused to hold that any retrial would violate the Double Jeopardy Clause because it did not have particular factual allegations to compare to the original charge and trial. Once the state has charged the petitioner, he may have the right to pursue federal habeas remedies before his state trial begins.

Grant of Qualified Immunity to Prosecutor Reversed

Mink v. Knox, 2010 WL 2802729 (7/19/10) (Colo.) (Published) - The 10th reversed a grant of qualified immunity to a state prosecutor. The § 1983 case should go to a jury because the plaintiff presented enough to establish the prosecutor could not have reasonably concluded probable cause existed to support a search warrant application or that the warrant was sufficiently particular. First, the warrant affidavit did not establish criminal libel. The First Amendment protected the plaintiff's satirical on-line editorial supposedly written by a professor who had similar features to a real professor but who would not espouse the crazy views espoused in the editorial. Even though the professor was a private person, not a public figure, the editorial statements were protected by the First Amendment because a reasonable person would not conclude that the statements were actual statements of fact about the real professor or attributable to him, rather than a satirical spoof. Second, the warrant was obviously not particular enough because it never limited the seizure to items relating to a particular crime. The warrant never mentioned any particular crime. The prosecutor could be liable because she approved the warrant documents and therefore was a cause of the constitutional violations.

Firearms Convictions, ACCA Enhancement Affirmed

United States v. Ford, ___ F.3d ___ , 2010 WL 2902747 (10th Cir. 2010) (NM). A jury convicted the defendant of firearm offenses (felon in possession, fugitive in possession, possession of stolen firearms). His guidelines were enhanced for offense characteristics and he was sentenced to a total of 30 years, with the Armed Career Criminal (ACC) enhancement concurrent.

(1) Evidence of Defendant’s escape from prison was res gestae to charges of fugitive in possession of a firearm and possession of a stolen firearm, and not subject to Evid. R. 404(b) analysis. It passed FRE 403 muster.

(2) Guideline enhancement for assaulting an officer during commission of the crime correctly applied. It did not matter that Defendant fired his gun at night 100 feet from the officer attempting to apprehend him, with no proof that he fired at the officer. He knew the person was an officer, and there was a substantial risk of injury in firing a gun at night at close range. Plus, the court could infer Defendant fired at the officer since Defendant was evading arrest. The officer’s fear of bodily harm relates to the assault, not the risk element of the enhancement, and was relevant.

(3) Finally, Defendant’s Kansas conviction of discharging a gun at an occupied dwelling or occupied vehicle (though called aggravated assault in some state court documents, the statute of conviction was the discharging offense) qualifies as a predicate violent felony under the ACCA. It is not a violent felony under 18 USC sec. 924(e)(2)(B)(i) because it does not have as an element the use/threatened/attempted use of physical force against a person of another, because it does not require the offender to know that there is a person inside the dwelling or vehicle. It does fit within the residual clause, and is similar to the enumerated crimes. The risks are similar to those associated with arson. It involves purposeful violent aggressive behavior.

Denial of Entrapment Defense, Request for CI Disclosure Upheld

United States v. Vincent, ___ F.3d ___ , 2010 WL 2902748 (10th Cir. 2010) (Ut.). The Court holds that the district court properly denied an entrapment defense and properly denied disclosure of the confidential informant (CI). The DEA, unsuccessful in its undercover buy from Mr. Big, enlisted a CI to hook them another person who knew Mr. Big, to turn that person into a CI for them. So the CI arranged for defendant to make a sale to an undercover DEA–the basis for the entrapment defense–and when Defendant was busted, he was asked to be a CI against Mr. Big. D agreed, but proceeded to expose the undercover DEA, and it all went south for Defendant. Court says the standard for getting the instruction is sufficient evidence from which a reasonable jury could find entrapment, with evidence viewed in a light most favorable to the defendant. Applying the standard in this case, the Court acknowledges that the CI did some pretty heavy duty inducing and that the CI was a government agent. However, the Court says infiltration is a very important tool cops use to get into nasty drug organizations, and concludes that “a reasonable jury could not conclude [that the CI’s inducements, etc.] created a substantial risk that an otherwise law abiding citizen would take up the methamphetamine trade.” On disclosing the CI: that is reviewed under abuse of discretion standard. There is strong public interest in protecting against disclosure is, but that must give way when the information is “relevant and helpful to the defense” or is “essential to a fair determination of a cause.” Here, Defendant apparently knew who the CI was, and his request for the entrapment defense was based on the assumption of the CI’s identity, but since he was correctly denied an entrapment defense, the CI’s identity disclosure was not useful to him anyway.

Minimal Colloquy Sufficient For Conviction; Resentencing Ordered For Rule 11 Violation

United States v. Landeros-Lopez, ___ F.3d ___ , 2010 WL XXX, No. 09-8056 (10th Cir. 2010) (Wyo.)

Plea colloquy adequate to establish factual basis for drug conspiracy conviction. (Defendant said the drugs belonged to his roommate, he was present when roommate dealt the drugs, and he accepted rent–drug proceeds–from the roommate, but did not state anything to establish that he agreed to violate the law, knew the objective of the conspiracy, that he voluntarily became a part of the agreement). In accepting the plea, the court can consider what the defendant says as well as any other evidence presented–in this case, the prosecutor’s statement. Evidence in the PSR may be considered by the COA only to see if any Rule 11 error effected the defendant’s substantial rights. On appeal, the full record supported a factual basis for the defendant’s plea.

The district court invited the defendant to allocute only after pronouncing the sentence, using the “highly conclusive” words “it is and will be the sentence . . ..” The right to allocution is absolute, and if denied, requires a reversal of the sentence without any regard as to prejudice. Sentence vacated and remanded for resentencing.