Izzo v. Wiley, ___ F.3d ___ , 2010 WL 3758717 (10th Cir. 2010)
In a denial of a § 2241 petition, the Tenth Circuit determines under plain language analysis that the BOP reading of the Second Chance Act was correct, and that eligibility for the Elderly Home Detention Pilot Program comes only after serving 75% of the sentence imposed, rather than 75% of the sentence that has been reduced by good time credit. (Eligibility criteria includes being at least 65 years old, and having completed 10 years or 75% of sentence, whichever is greater). Petitioner, a 70 year old non-violent drug offender serving a 300 month sentence imposed in 1993, must wait another year.

Pew Report Documents Collateral Costs of Incarceration on Offenders, Families

A press release from the Pew Center on the States says:

Washington, D.C. - 09/28/2010 - Incarceration reduces former inmates’ earnings by 40 percent and limits their future economic mobility, according to a new Pew report, Collateral Costs: Incarceration’s Effect on Economic Mobility. This is a growing challenge now that 1 in every 28 children in America has a parent behind bars, up from 1 in 125 just 25 years ago.

“People who break the law need to be held accountable and pay their debt to society,” said Adam Gelb, director of the Public Safety Performance Project of the Pew Center on the States. “At the same time, the collateral costs of locking up 2.3 million people are piling higher and higher. Corrections is the second fastest growing state budget category, and state leaders from both parties are now finding that there are research-based strategies for low-risk offenders that can reduce crime at far less cost than prison.”

The report authored by Pew’s Economic Policy Group and the Pew Center on the States shows that:

• Before being incarcerated, two-thirds of male inmates were employed and more than half were the primary source of financial support for their children.

• After release, former male inmates work nine fewer weeks annually and take home 40 percent less in annual earnings, making $23,500 instead of $39,100. That amounts to an expected earnings loss of nearly $179,000 through age 48 for men who have been incarcerated.

• Of former inmates who were in the bottom of the earnings distribution in 1986, two-thirds remained there in 2006, twice the number of non-incarcerated men.

“Pew’s past research shows a variety of factors influence economic mobility both within a person’s lifetime and across generations. This report finds that incarceration is a powerful determinant of mobility for both former inmates and their children,” said Erin Currier, project manager of the Economic Mobility Project of Pew’s Economic Policy Group.

Incarceration’s long-term economic repercussions are felt by increasing numbers of families and communities now that 2.3 million Americans are behind bars, equaling 1 in 100 adults. Up from 500,000 in 1980, this marks more than a 300 percent increase in the United States’ incarcerated population.

Collateral Costs details the concentration of incarceration among men, the young, the uneducated and African Americans. One in 87 working-aged white men is in prison or jail compared with 1 in 36 Hispanic men and 1 in 12 African American men. Today, more African American men aged 20 to 34 without a high school diploma or GED are behind bars (37 percent) than are employed (26 percent).

The report also shows more than 2.7 million minor children now have a parent behind bars, or 1 in every 28. For African American children the number is 1 in 9, a rate that has more than quadrupled in the past 25 years.

According to the Washington State Institute for Public Policy, improving employment prospects can decrease the chances that ex-offenders will return to prison or jail. In previous reports, Pew identified policies that research shows can reduce recidivism and minimize the intergenerational impact of incarceration by boosting the chances that ex-offenders will successfully rejoin the community and the labor market. Those solutions include:

• Reconnecting former inmates to the labor market through education and training, job search and placement support, and follow-up services;

• Making work pay by capping the percent of an offenders’ income subject to deductions for court-ordered fines and fees;

• Funding incentives for corrections agencies and programs that succeed in reducing crime and increasing employment;

• Offering earned-time credits to offenders who complete educational, vocational, or rehabilitation programs behind bars; and

• Using swift and certain sanctions to deter probation and parole violations and reduce the cost of incarceration. For example, Hawaii’s successful HOPE probation program uses short but immediate jail stays to punish drug use and other probation violations, imposing them on weekends so working offenders don’t lose their jobs.

All original research for this report was conducted for Pew by Bruce Western, professor of sociology, Harvard Kennedy School, and Becky Pettit, associate professor of sociology, University of Washington. Incarceration totals and rates are from federal Bureau of Justice Statistics (BJS) data on penal populations from 1980 to 2008, and correctional surveys were used to allocate aggregate totals across age, race, gender and education groups. Earnings and income mobility analyses were conducted using the National Longitudinal Survey of Youth (NLSY) 1979 cohort.

Prosecution Misconduct

USA Today begins an investigative series on prosecution misconduct in federal cases today.

http://www.usatoday.com/news/washington/judicial/methodology-federal-prosecutor-misconduct.htm

http://www.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N.htm

http://projects.usatoday.com/news/2010/justice/cases/ (database)

According to the articles, numerous cases from all over the United States and Puerto Rico decided since 1998 were analyzed for prosecutorial misconduct by a panel of experts, including defense attorneys. The database is broken down into types of misconduct, and can also be searched by region. Well worth reading and exploring.

More Unpublished Decisions

U.S. v. Carbajal-Moreno, 2010 WL 3548490 (9/14/10) (unpub'd) - Counsel was not per se ineffective just because he was disbarred at the time of the trial. Counsel is only per se ineffective when counsel never was licensed to practice law.

Castillo-Torres v. Holder, 2010 WL 3529413 (9/13/10) (unpub'd) - It is a crime of moral turpitude to make false statements to government authorities with an intent to mislead them. So, the alien's misdemeanor convictions for lying to a police officer and during a preliminary hearing were for crimes of moral turpitude.

Moore v. State of Colorado Department of Human Services, 2010 WL 3529355 (9/13/10) - It was impossible to determine the basis of federal court jurisdiction or a colorable cause of action where the plaintiff alleged as follows: "I what a hearing. It is not right."

Unpublished Decisions

U.S. v. Owens, 2010 WL 3516710 (9/10/10) (Okl) (unpub'd) - The d. ct. erred when it applied the guideline range for a Grade B supervised release violation where the defendant's violation consisted only of committing a misdemeanor DWI---a Grade C violation. But the defendant could not meet the prejudice prong of the plain-error test because the court varied below the wrong range to a point within the correct range and gave a detailed explanation for choosing that sentence.

U.S. v. McMahan, 2010 WL 3446852 (9/2/10) (Okl) (unpub'd) - A deliberate ignorance instruction may be proper when knowledge of a conspiracy's fraudulent goal is at issue, even if the 2d Circuit is correct that such an instruction is inappropriate when knowing and intentional participation in the conspiracy is at issue. The defendant could only present general reputation evidence to establish his character. Rule 405(b) prohibited evidence of specific instances of the defendant refusing to accept questionable campaign contributions and not giving favorable treatment to an alleged briber.

U.S. v. Fernandez, 2010 WL 3422586 99/1/10) (Okl) (unpub'd) - The defendant was not deprived of his right to effective assistance of counsel when counsel did not file a cert petition, as the defendant requested, to take advantage of Blakely, which had been argued, but not decided yet. The defendant did not have a right to counsel on discretionary appeals. The 10th also refused to recall the mandate to allow a belated cert petition based on the attorney's failure to comply with the 10th Circuit CJA plan, saying the defendant could not prove prejudice. Seemingly as a slap to the other 2 members of the panel [Judges Ebel and Hartz], Judge O'Brien concurred, but wrote separately to provide "a more robust analysis." Judge O'Brien noted that other circuits have on occasion recalled the mandate when counsel has failed to honor a defendant's request to file for cert. But in this case the circumstances were not extraordinary enough. Counsel had not promised to file a petition, the defendant was aware of the filing deadline, he waited 7 months after the deadline to file a § 2255 petition and did not attach any corroborating documentation. Judge O'Brien acknowledged the defendant's argument that he might have benefited from Blakely if he stayed in the pipeline was "not without merit." But, since Blakely concerned only state guidelines, his case would have had to stay in the pipeline until Booker was decided 7 months after Blakely and 10 months after his cert deadline. That seemed unlikely, especially since the defendant had not preserved the Booker issue below.

Martinez v. Davis, 2010 WL 3330287 (8/25/10) (Colo) (unpub'd) - BOP's decision to give sentence reductions of less than a year for RDAP completion to those with sentences of 36 months or less [or, as the 10th puts it, BOP's decision to give greater reductions for those with higher sentences] is reasonable because lower reductions would likely give more of an incentive to a person with a shorter sentence than it would for someone with a higher sentence.

Contempt Order Based on Repeated Derogatory Emails to Judge Upheld

Nickerson v. United States, No. 09-2255, 2010 WL 3511257 (September 9. 2010) (unpublished): pro se appeal of an order from the US District Court for New Mexico finding Mr. Nickerson in contempt and ordering him to pay $300 as a sanction for violating a previous court order. Mr. Nickerson had filed a complaint in district court against the United States because the government refused to issue a consular report of birth abroad of a citizen of the United States for a child born in 1989 in Mexico whom Nickerson claimed was his daughter. The case was dismissed for lack of subject matter jurisdiction. Mr. Nickerson did not appeal.

In October 2008, the court told Mr. Nickerson to stop sending emails to to the Court's chambers, explaining that the court's email address was for submitting proposed orders or jury instructions and not for ex parte communication or to express dissatisfaction. Apparently, Mr. Nickerson had sent a vituperative email to the judge. In response to the instruction, he sent "another lengthy and derogatory email to the Court's chambers." The contempt order was issued and Mr. Nickerson appealed.

The Tenth Circuit first declined to consider any rulings other than the contempt order, because no appeal from those orders was timely filed.

Regarding the contempt order, the Court says "he appears to deny having made derogatory and inflammatory statements in emails to the court. Yet he continues to make inflammatory and disparaging statements regarding that court's judges in his appellate filings, including accusing district court judges of 'misbehav[ing] in a horrible and abusive manner' and referring to 'psychopathic child hating Judges' who 'imagine them[ ]selves to be Latina Princesses.'” Not surprisingly, the COA finds that the district court did not abuse her discretion in imposing the sanctions.

Rancher Who Sold Cattle that were Security for Loans Convicted of Bank Fraud

United States v. Bowling, ___ F.3d ___ , 2010 WL 3547710 (10th Cir. 2010) (Ok). Cattle rancher loses his appeal on bank fraud convictions. He had taken out loans over the years to run his cattle operation, secured by cattle, equipment, and land, ran a line of credit and, with the bank’s knowledge, generally did not comply with agreements to give notice to the bank whenever he sold any cattle. Lo, one year he stopped paying back his loans and lo, an audit showed that all the cows were gone. Sold. (Not stolen or levitated and mutilated by aliens as he told the bank).

THE BIG issue in the case: the COA held that Defendant was not entitled to a separate good faith defense jury instruction, and that good faith is encompassed within the general specific intent instruction given for bank fraud; the COA had earlier overruled United States v. Hopkins 744 F. 2d 716 (10th Cir. 1984), which required the instruction when requested and when supported by evidence. Sufficient evidence to support elements of bank fraud, and although the bank may have waived its claim for a security interest under the UCC, that waiver did not provide a defense to any of the elements of the fraud statute. The government was not even required to prove the bank had a security interest in the cattle to show Defendant’s scheme to defraud (in spite of that fact being cited in the indictment). For much the same reason, it was not error to refuse an instruction on the UCC waiver theory–it was an incorrect statement of the law.

Denial of suppression motion upheld. Livestock board special ranger who under state law had the authority to enforce only stolen livestock laws and not bank fraud allegations, obtained a search warrant for D’s home. COA said, as it did in Defendant’s civil case of the same nature, that a state law violation does not always equate to a 4th Amendment violation. “The warrant was constitutional.” (No other explanation–it is in the civil case decision). That the judge issuing the warrant had been the attorney for a different bank involved in adversarial proceedings against Defendant 10 years earlier did not show bias.

Comments on Local Rules Changes Solicited

A memorandum from the Tenth Circuit states:

"On December 1, 2010, changes to Federal Rules of Appellate Procedure 1, 4, and 29 will take effect. For more specific details, including committee notes and information, please see uscourts.gov/rules. Effective January 1, 2011, the United States Court of Appeals for the Tenth Circuit will issue new local rules to accompany the federal rules changes. General information regarding all of those changes is outlined below. All interested persons will find a redlined version of the proposed rules available on the court’s website at www.ca10.uscourts.gov A clean draft of the proposed rules will be posted on the court’s website as well.

"From August 18, 2010 through October 15, 2010 the court invites public comment on the proposed local rules changes. Comments may be forwarded to, 10th_Circuit_Clerk@ca10.uscourts.gov or mailed to the Office of the Clerk, 1823 Stout St., Denver, Co., 80257. The court welcomes all comments, suggestions, and questions."

The memorandum also discusses the proposed changes to the rules. The full memo and redlined and clean versions of the proposed rules are available at the Tenth Circuit's website.

Circuit Snippets

US v. Lanham, No. 08-6504 (6th Cir. 8/24/10): Even though the guidelines are now advisory, ex post facto concerns support applying the guidelines in effect at the time of the offense rather than at the time of sentencing if the later guidelines are harsher, the Sixth Circuit said. There is a circuit split on this issue. The D.C. Circuit and the 4th Circuit have also held that ex post facto concerns are still applicable, but the 7th Circuit in US v. Demaree, 459 F.3d 791 (7th Cir. 2006), held that the advisory nature of the guidelines and the district court's ability to vary means that amendments do not create a "significant risk of increased punishment."

US v. Rains, No. 09-50724 (5th Cir. 8/23/10): A prior 924(c) conviction for possession of a firearm in furtherance of a drug-trafficking crime or crime of violence is a "felony drug offense" supporting imposition of a mandatory minimum life sentence under 21 USC 841 if the record establishes that the prior conviction involved drug trafficking.

US v. Wahid, No. 09-50036 (9th Cir. 8/10/10): Federal law (18 USC 1028A) requires a two-year prison term for aggravated identity theft. The statute also prohibits running the sentence concurrently with another sentence or otherwise reducing it. The First Circuit, in US v. Vidal-Reyes, 562 F.3d 43 (1st Cir. 2009), held that this prohibition applied only to counts that charged predicates to the aggravated identity theft and that district courts have discretion to reduce the sentence for a nonpredicate felony to offset the consecutive sentence. The Ninth Circuit agreed with the First Circuit, but rejected the defendant's argument that the district court was unaware of his discretion and affirmed the consecutive sentences.

US v. Dvorak, No. 09-3463 (8th Cir. 8/20/10): Sufficient evidence supported the defendant chiropractor's convictions for money laundering where he repeatedly deposited fraudulently obtained Medicaid reimbursements into his own checking account and then quickly withdrew the entire amount in cash. Such activity proved his intent to conceal the location of the proceeds.

US v. Havelock, 9th Cir. No. 08-10472 (9th Cir. 8/23/10): The 9th Circuit gave 18 USC 876(c), which criminalizes mailing threatening communications, a narrow construction. The statute applies only if the address on the face of the package is that of a natural person. The Tenth Circuit's position in US v. Williams, 376 F.3d 1048 (10th Cir. 2004), is that both the envelope and the salutation can be considered.

US v. Allen, No. 09-2747 (3d Cir. 8/17/10): Defendant was charged with felon in possession after a shakedown in a bar. He challenged the search. Police officers did not violate the fourth amendment where they used a SWAT team to detain everyone on the premises of a bar where the officers had a valid warrant to seize information in the custody of the business (the police wanted the video surveillance tapes for purposes of a homicide investigation unrelated to the bar). The court focused on the facts that the officers were executing a warrant for evidence at a bar located in a high crime area, where patrons were known to carry firearms, and where gun-related crimes had recently been committed. Also, there were several people present so the police were justified in securing the premises to ensure others weren't in danger.

Thomas v. Bryant, No. 09-11658 (11th Cir. 8/20/10): The Florida Department of Corrections can't just willy-nilly pepper spray inmates who may be mentally ill and unable to control their behavior, the 11th Cir. said. Doing so is cruel and unusual punishment. The corrections officers must consult with mental health professionals before resorting to such tactics.

US v. Dotson, No. 09-30149 (9th Cir. 8/17/10): The Assimilative Crimes Act assimilates Washington state's law against furnishing liquor to minors.

US v. Pineda-Doval, No. 08-10240 (9th Cir. 8/10/10): The trial court's refusal to let a defendant charged with transporting illegal aliens resulting in death present evidence concerning the Border Patrol's policies on the use of spike strips to stop fleeing vehicles violated the defendant's right to present a complete defense. The accident that caused the death of 10 passengers occurred when the defendant swerved to avoid such a strip and rolled the SUV he was driving. Defendant sought to show that the agents did not comply with relevant policies. The Court agreed that he was denied his only defense. However, the error was harmless because no reasonable jury would conclude that the agents' negligence, if there was any, was so extraordinary that it would be unfair to hold the defendant responsible.

US v. Holstein, No. 09-2822 (7th Cir. 8/18/10): A lawyer was guilty of bankruptcy fraud and false statements based on his firm's efforts to conceal its representation of supposedly pro se bankruptcy filers. The clients didn't know they were pro se, and the lawyer didn't tell them he was about to suspended from the practice of law, he misrepresented to the bankruptcy court that the filers were pro se, and he did it all to conceal the fact he was practicing without a license. The court rejected the lawyer's attempts to blame it all on his paralegal.

Riva v. Ficco, No. 08-1998 (1st Cir. 8/5/10): A petitioner's mental illness can be a basis for equitably tolling the AEDPA's onerous deadline.

Price v. Pierce, No. 08-1402 (7th Cir. 8/13/10): but a motion seeking post-conviction DNA testing under state law is not "collateral review" sufficient to toll the AEDPA deadline for filing a federal habeas petition.

US v. Green, No. 08-5548 (2d Cir. 8/13/10): A condition of supervised release prohibiting the defendant from wearing any colors commonly displayed by criminal street gangs was unconstitutionally vague. The Court notes one law enforcement agency says that gang colors can range from white t-shirts to blue, black, red, green, brown or purple clothes. So what can a poor supervisee wear? Pink? Plaid?

Sufficient Evidence Supported Bank Robbery Conviction

US v. Wakefield, 09-4133, 2010 WL ------, (10th Cir. 8/12/10)
Defendant convicted of aiding and abetting bank robbery appealed, claiming insufficient evidence. There was more than enough evidence to support the conviction where Wakefield (who had long hair) was on video buying a BB gun; an hour later, a bank was robbed and the robber got into a van driven by someone with long hair; an officer pulled over a van matching the description; Wakefield was driving the van and the passenger had hundred-dollar bills with fresh dye in his pocket; there was a BB gun in the van; and records from Wakefield's cell phone followed the course of action in the robbery.

Mail, Wire Fraud Convictions Based on "Reasonably Foreseeable" Use of Mails, Internet, Affirmed

United States v. Weiss, ___ F.3d ___ , 2010 WL XXX (10th Cir. 2010) (Colo). Previously unpublished case. In mail and wire fraud convictions for bogus home loan schemes, defendant was properly charged with mail fraud because the mailings were reasonably foreseeable, even if he did not perform the actual mailings. The mailings were part of an ongoing scheme and therefore did not occur only after the fruition of each sub-part of the fraudulent scheme. Also, D could have reasonably foreseen that the internet would have been used in the scheme (the wire fraud counts) even though there was no direct evidence that he knew that a particular transmission program would be used.

The COA 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 D 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.

Qualified Immunity Decision Reversed in Civil Rights Case

Lundstrom v. Romero, ___ F.3d ___ , 2010 WL 3222048 (10th Cir. 2010) (NM). Court reverses qualified immunity decision in favor of Albuquerque Police Department, finding that no reasonable officer would have determined that there was reasonable suspicion/probable cause to conduct the seizure/search they did, under the facts in the case.

Cops had received a 911 call that a woman had been striking a toddler in the yard next door and screaming at it, though the caller said she could see nothing. APD arrived 40 minutes later The male plaintiff answered the door to see a cop out in the bushes with a flashlight, who then pointed a gun at him. The cop asked about a child inside, the man said there were no kids there, did not believe she was a cop, asked for ID, things got belligerent, female plaintiff came out to smooth things over, cop pointed gun at her, male went inside and closed door, and called 911 to find out if the cop was really a cop. Meanwhile, many cops descended–not for the kid’s sake, but because there was a disobedient citizen behind the door of his own home. Female came outside, tried to explain things, was not questioned about a child until she volunteered that she had a grandchild. According to female, the cops were really not interested in a child. Male was inside behind closed door, female was handcuffed and told to sit on curb. Dispatch called neighbor again who confirmed what she heard but said maybe police were at the wrong address. Meanwhile cops in the back reported seeing male pacing in his bedroom, agitated. He was on the phone to 911/dispatch, who told him to put the phone down and go outside with hands up and that many cops were there. He said to dispatch if the cops beat him up he would fight back (which cops heard). He came out, was roughly cuffed and sustained some injuries. Police searched the house from anywhere between 10 and 45 minutes, while both plaintiffs remained cuffed. No child was found.

1. Reasonable for cop to point gun briefly at male, given circumstances, which cop lowered when he raised his hands and cop saw that his hand contained a cell phone. No seizure of female because she stepped between cop and male and cop did not intend to point gun at her.

2. Handcuffing of female not reasonable under circumstances–she was cooperative, no child found, male denied any child, male on phone to 911, no one asked female about a child. Cuffing was not reasonably related in scope to investigation.

3. Seizure of male when he submitted to police authority and went outside. There was no particularized and objective basis for suspecting him of wrongdoing–the caller reported a woman was striking the child. No exigencies. The seizure was unreasonable. The cuffing of the male not justified for the same reasons. Even community care-taking function standards not satisfied.

4. Clearly established law that without reasonable suspicion, an investigative detention is not allowed. Clearly established that the amount of force used by cops in this matter was excessive when all the circumstances are weighed, including fact that male presented little threat to cops. Clearly established that search of the house without a warrant is permitted in the absence of consent if there are exigent circumstances, which were not present in this case.

Meth Defendant's Arguments Rejected

United States v. Hood, ___ F.3d ___ , 2010 WL 3227820 (10th Cir. 2010) (Utah). Convicted after trial of possession with intent to distribute more than 50 grams of meth, and sentenced to life imprisonment, the defendant raised three arguments to no avail.

1. District court correctly denied motion to dismiss the indictment for government’s destruction of bags in which meth found and commingling amounts. D hypothesized that the destroyed evidence could potentially be exculpatory and demonstrate that cops might have mixed drugs seized from informant/girlfriend with his, and that he had less than 50 gr. Because he could only state potentially exculpatory value to the evidence he did not meet Trombetta Due Process standard (if exculpatory value is only potential, then must show bad faith). He could not then meet the Youngblood standard because he conceded that the officers did not act in bad faith. COA rejected D’s reliance on Steven’s Youngblood concurrence that if evidence is so critical to defense then one need not show bad faith, because Stevens’ was not the majority voice, and the evidence not critical.

2. COA refuses to apply civil standard for imposing sanctions when evidence is spoiled, finding no plain error in the d ct’s not sua sponte applying it.

3. The failure of the Information to list the correct court and place of a prior drug conviction to support a § 851 enhancement of life imprisonment was harmless. COA determines even if the error was a non-correctable non-clerical error, it could still find it harmless. Citing to Gonzales-Lerma, 14 F.3d 1479, the COA said that such information can still provide sufficient notice of the government’s intent to seek enhancement based on the conviction. Here, D did not show that he was prejudiced. In his sentencing objections, he acknowledged a drug conviction associated with his name with the particulars in the error-filled entry in the Information.

4. The district court generally has no duty to sua sponte inquire into problems with the attorney client relationship, especially when allegations, like the ones made by D at sentencing, are vague and contradictory. D can raise any ineffective assistance issues in a post-conviction action.

Protective Orders, Assault Conviction Excluded

Therrien v. Target Corporation, 2010 WL 3095233 (8/9/10) (Okl) (Published) - It may be of some use in combating the admission of prior bad act evidence that in this case the 10th affirmed the exclusion of evidence of protective orders issued against the plaintiff and one conviction for misdemeanor assault. Target wanted to introduce the evidence to show the plaintiff acted unreasonably when he intervened to help Target security detain a shoplifter.

Officers Lacked Probable Cause to Arrest Plaintiff for "Disorderly Conduct"

Stearns v. Clarkson, 2010 WL 3191511 (8/13/10) (Kan) (Published) - The prosecutor and officers did not have a reasonable belief that probable cause existed to arrest the plaintiff for disorderly conduct for either of 2 instances: (1) the plaintiff, whose father had been killed by local law enforcement officers, knocked on the front door of an officer's home at 12:30 a.m. and when no one answered he left saying "later" ; (2) later, during a traffic stop, the plaintiff was loud, belligerent, smelled of alcohol and pointed a finger at an officer while using profanity. The plaintiff's words were not "fighting words," especially given they were addressed to a police officer, who is trained not to react violently. One officer was not liable because he only relied on another officer's assertion that there was probable cause. Officers were also not entitled to qualified immunity when they strip-searched the plaintiff after arresting him. They had no intention of placing him in general population and they had no reasonable suspicion, in light of the above incidents, to believe, after patting him down and finding nothing, that the plaintiff had a concealed weapon.

Establishment Clause Violated by Cross Memorials on Public Land with Public Insignia

American Atheists v. Duncan, No. 08-4061 (10th Cir. August 18, 2010): The Utah State Highway Patrol Association obtained the permission of Utah state authorities to place 12-foot high crosses, with the official UHP emblem, on public land to memorialize fallen Utah Highway Patrol troopers. 1) three members American Atheists, Inc., who reside in Utah had standing. 2) The memorials violate the Establishment Clause of the Constitution because they "would convey to a reasonable person that the state of Utah is endorsing Christianity". The crosses are not part of a larger display, they conspicuously bear the insignia of a state entity, and they are primarily on public land. The fact all the trooper are memorialized with a Christian symbol conveys the message that there is a connection between UHP and Christianity and could lead a reasonable person to fear unequal treatment. The Court specifically commented on the "massive size" of the crosses and the fact that several are located near a UHP office. The photos attached to the opinion demonstrate that the crosses are, indeed, much larger than the usual roadside private memorial.

Attorney-Client Privilege and Grand Jury Investigations Addressed

In re Grand Jury Proceedings, Nos. 09-2062/09-2068 and 09-2209/09-2228, 2010 WL 3258616, (Court publishes two decisions previously issued under seal and now with redactions.)
09-2209/09-2228
Appellee (a company?) was investigated for making misrepresentations on federal forms. Two GJ subpoenas were issued to an employee of appellee. Appellee moved to quash the subpoenas. 1) The Notice of Appeal by the government was timely filed where the district court did not definitively resolve issues until its second order, the government filed a motion for reconsideration, and the district court disposed of that order. The district court could properly extend the 30-day time limit for filing an NOA under FRAP 4(b)(4). 2) the district court erred by requiring certain documents be produced in camera so it could assess whether individual documents were relevant to the grand jury investigation. The court excluded certain documents from production and redacted portions of others. The Tenth holds the district court failed to apply the proper legal standard for relevance and therefore reverses. It abused its discretion in three ways: 1) applying its own categories of subpoenaed material, rather than categories as set forth by the government; 2) engaging in a line by line and document by document analysis; and 3) in camera review.

09-2062/09-2068
Two of Appellant's lawyers received subpoenas from a grand jury investigating appellant. Appellant moved to quash on the grounds the subpoenas violated his Sixth Amendment rights, applicable Rules of Professional Conduct, and attorney-client privilege and work product. The district court ordered the attorneys to respond to nine questions. The Tenth affirms. 1) The Tenth Circuit properly had jurisdiction because the attorneys testified they would comply with the orders rather than risk contempt. 2) Court lacked jurisdiction to entertain challenge to order to one attorney to produce billing records for review in camera; issue not yet ripe. 3) Court lacked jurisdiction to consider denial of appellant's motion to find prosecutorial misconduct before the grand jury. 4) Regarding the applicability of the attorney-client privilege: Asking attorney to testify regarding statements made by the attorney to the government or that the government made to him were not privileged; questions regarding information that the attorney received from the government and passed to his client were not privileged; information received from the government by attorney 1 and passed to attorney 2 were not privileged; privilege was waived regarding Appellant employee's communications with counsel because the information was disclosed to the government in an affidavit. 5) None of the information sought was work product or violated the 6th amendment. 6) Finally, the Rules of Professional Conduct did not provide any basis for relief: "Even if the [state] Rules of Professional Conduct were to apply to federal prosecutors' practice before a federal grand jury -- a proposition about which we have considerable doubt -- the [state] Rules do not bestow any rights upon Appellant that he can invoke in this appellate court or to the district court in attempting to quash the subpoena."
And after all that, no indictments were issued.

Unpublished Decisions

U.S. v. Pinon-Ayon, 2010 WL 3277644 (8/20/10) (Wyo) (unpub'd) - The 10th grants the government's unopposed motion to vacate the sentence and remand for resentencing because the district court did not make specific and independent findings required to justify an obstruction of justice enhancement. Unfortunately, the opinion is short on details.

U.S. v. Espinoza, 2010 WL 3278043 (8/20/10) (N.M.) (unpub'd) - The government admits its Las Cruces office suppressed evidence that its chief witness ested positive for meth weeks before trial, when she insisted at trial she had given up meth. But the suppressed evidence was not material in light of the additional impeachment evidence that was offered at trial.

U.S. v. Ramos-Lopez, 2010 WL 3245245 (8/17/10) (N.M.) (unpub'd) - A defendant's request for the low end of the guideline range waives, not just forfeits, the argument on appeal that the court should have imposed a below-guideline-range sentence.

U.S. v. Gibler, 2010 WL 3245180 (8/16/10) (Kan) (unpub'd) - The 10th says in a footnote that in habeas cases counsel does not have to follow the Anders procedure, because the petitioner does not have the right to counsel. The 10th doesn't say what procedure counsel should follow.

Kersh v. Smeler, 2010 WL 3245313 (8/17/10) (Colo) (unpub'd) - The 10th rejects claim that an invisible human robot forced the petitioner to commit robberies.