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.
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.
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