Wednesday, November 17, 2010

A comment re: the SCOTUS cert grant in Tolentino and a couple of 10th cases. First, the S. Ct.

Tolentino v. New York, 2010 WL 2552574 (11/15/10) - This cert grant could very well gut our cherished decision in U.S. v. Olivares-Rangel, 458 F.3d 1104 (10th Cir. 2006). Olivares-Rangel was the best possible decision one could hope for with respect to identity evidence, but now it could be in real danger. In Tolentino, the questions raised include whether identity-related evidence can ever be suppressed, and whether previously-acquired government records, such as motor vehicle records in Tolentino [or A-files, in our cases] are suppressible and when.

10th Cir. cases:

U.S. v. Frakes, 2010 WL 4540306 (11/12/10) (unpub'd) - The d. ct.'s criticism of the bases for certain child porn enhancements did not undermine the guideline calculations. The d. ct. was just discussing § 3553(a) factors, which did not have anything to do with the calculations.

Simmons v. Stus, 2010 WL 4457934 (11/9/10) (unpub'd) - It was correct to dismiss a § 1983 suit for failure to exhaust administrative remedies, even if the prison never told the prisoner there were administrative remedies.

Tenth Circuit published cases

Thomas v. United States, ___ F.3d ___ , 2010 WL xxxx, No. 9-3291 (10th Cir. 2010) (Kan).
Court denies 28 U.S.C. § 2241 petition for a writ of habeas corpus challenging on ineffective assistance grounds petitioner’s court martial and sentence, finding military court’s dismissal of his post-conviction challenge rested on adequate legal grounds. Different and much narrower rules apply for review by civilian court of military convictions, making this case of remote application to our work (but it does illustrate why civilian courts with their wider avenues for review are preferable to military tribunals).

United States v. Wampler, ___ F.3d ___ , 2010 WL xxxx, No. 9-6229 (10th Cir. 2010) (Ok).
The Court lacks jurisdiction on interlocutory appeal claim by defendants that it would be a breach to try them on charges that were to have been resolved in an unconsummated agreement between their corporate employer and the government. (Defendants were appealing the district court’s denial of their motion to dismiss on those grounds). The Cohen test of what can be considered “practically final” and reviewable on interloc is to be applied sparingly and narrowly. The Defendants’ claim of a right not to be tried is not based on any constitutional or statutory right guaranteeing that no trial will be had, like Double Jeopardy, but only on one contained in an agreement. The Defendants’ claims that the district court’s rejection of an earlier plea violates separation of powers, and that the new charges against them flow from the government’s retaliation for appealing the district court’s original rejection of the plea, fare no better as deserving of interloc attention. Finally the Court rejects their late-raised Double Jeopardy claim–Defendants are not necessarily in the shoes of the corporation that was originally charged, and a jury was never empaneled on the original charge so jeopardy never attached.

United States v. Hall, ___ F.3d ___ , 2010 WL xxxx, No. 9-3165 (10th Cir. 2010) (Kan).
Harmless error in admitting evidence of defendant’s earlier bank robbery convictions in his trial for bank robbery. Although Defendant stipulated to convictions for purposes of the felon in possession of a F/A count, the court read the entire indictment during voir dire which alleged Defendant’s two prior bank robbery convictions. Defendant moved for a mistrial , government did not oppose, court denied. Although error to have read indictment and advisable to grant mistrial, Court says harmless given how the trial unfolded. The error did not induce Defendant to testify–he would have had to present his elaborate alibi defense anyway and if he did not testify he had no real defense (plus Defendant did not raise issue in front of trial court)–and evidence of the two robbery convictions came out because and when he testified. Anticipating 609 impeachment, Defendant brought up on direct the more recent bank robbery conviction and two robbery counts dropped under that plea agreement. The district court ruled that the earlier of the 2 convictions could come in to rebut Defendant’s opening, and because it had a signature quality. No plain error in the prosecutor’s exceeding the court’s limits on crossing Defendant on his priors nor in her use of that information on closing.

United States v. Pablo, ___ F.3d ___ , 2010 WL xxxx, No. 9-2091 (10th Cir. 2010) (NM).
Defendant, convicted of rape and related charges, unsuccessfully claims that his right to Confrontation was violated when a substitute technician testified to lab results, that the prosecutor interfered with his right to present a defense when potentially exculpatory witnesses decided not to testify when told of 5th amendment implications; and the trial court erred in excluding evidence of the victim’s behavior earlier in the evening under FRE 412. (1) No plain error in lab tech testimony because no error that is clear or plain under current law. First, without original reports as part of appellate record, Court cannot review Defendant’s claim that tech witness merely “parroted” the original reports; tech’s testimony that she was reading the report could also mean that DNA reports are written so that another expert could reach her own independent conclusion. It is not plain that Melendez-Diaz applies, since in M-D only the affidavits were introduced, and here the original reports were never introduced. Under M-D, it is not clear and plain the degree to which a tech can testify as an expert and give an opinion relying on the out of court work and testimonial statements of others. (NOTE: because the issue came up under plain error standard, Court says Bullcoming, upon which cert was granted, will have no application, and declined to stay the appeal).

(2) a Defendant’s right to raise a defense does not include compelling a witness to incriminate himself, though the government cannot substantially interfere with a defense witness’ decision to testify. Any government interference is diminished when a witness decides not to testify after consulting with an independent attorney. Here the prosecutor did not threaten prosecution but rather warned the court of its concerns for the witnesses who were present before, during and after the rape. The court appointed counsel for the witnesses who consulted and declined to testify–no government interference or bad faith.

(3) trial court barred evidence that the victim was seen undressed in the presence of two men earlier in the evening at a big drunken party, and that she had made sexual advances to the Defendant’s co-Defendant. FRE 412 bars such evidence unless it fits within an exception listed in the rule. No abuse of discretion in barring “undressed” testimony–it did not fit the exception re: to show another was source of semen and injury, especially since Defendant’s proffer said it would show V’s consensual encounter with others, and her injuries were inconsistent with consensual sex. He could not use it to show V’s state of intoxication and therefore unreliability because it was a back door way of getting in impermissible 412 evidence.

(4) No plain error in barring “advances to co-Defendant” testimony, under the constitutional right to present a defense exception of FRE 412. Defendant cannot show 3d prong of plain error–substantial rights effected–because cannot show reasonable probability that if the jury had heard this evidence, he would not have been convicted. Defendant’s proffers had this happening on the same night but well in advance of the rape in a different car at a different location. Other evidence of consent came out but jury disbelieved it. Consent with co-Defendant does not mean consent with Defendant. Briscoe concurs to write separately and tightly on the confrontation issue.

Wednesday, November 10, 2010

S. Ct. and 10th Cir. cases. First, the S. Ct.:

Wilson v. Corcoran, 2010 WL 4394137 (11/8/10) - The S. Ct. continues its practice established last year of per curiam reversals to correct errors. This case goes against the capital habeas petitioner. The 7th Circuit granted relief on the grounds that the Indiana S. Ct. had unreasonably determined the trial court properly imposed the death penalty solely based on statutory aggravating factors. Had the trial court based the sentence on non-statutory aggravating factors, it would have violated state law, but, according to the S. Ct., the 7th Circuit had not found such state law error violated federal law. As we all know, federal habeas is only available for violations of federal law. The S. Ct. remanded the case for the 7th to try again.

10th Cir. cases:

Cavanaugh v. Woods Cross City, 2010 WL 4332289 (11/3/10) (Utah) (Published) - According to the plaintiff's allegations, police responded to a husband's request to find his wife. He told the officers they had a fight during which his wife tried to put him in a closet and then she stormed off with a kitchen knife under the influence of alcohol and pain medications. Eventually an officer saw the wife walking towards her home. He could see she was not holding a knife. As the wife and the officer drew near each other, the wife veered off the walkway towards her front door, cutting across the lawn---walking quickly, but not running. The officer followed her and while he was no more than 6 feet away tasered her without warning, causing her to fall and hit her head on the concrete steps. The taser shot "seized" the wife in violation of the 4th Amendment. The intrusion was quite severe since a taser sends up to 50,000 volts of electricity and causes excruciating pain. The officer was investigating a minor offense--a non-injurious assault---and it was not objectively reasonable to believe the wife posed an immediate threat. The wife was not actively resisting or fleeing arrest. She didn't have any reason to believe the officer wanted to arrest her. Of possible help to us, the 10th holds that it is not objectively reasonable to ignore specific facts showing an individual is not dangerous, even though the officer had prior general information indicating the individual might be dangerous. The 10th affirmed the d. ct.'s decision denying summary judgment for the officers and the city, which no one denied apparently had an unwritten policy approving such tasering.

U.S. v. Birch, 2010 WL 4359166 (11/4/10) (Colo) (unpub'd) - The Leon good faith exception applied in the following circumstances. The defendant had been indicted for a murder that was committed 2 years before. The officers got a warrant to search the defendant's apartment for the gun used to murder the victim and shoes matching footprints at the scene. While the warrant affidavit may not have established probable cause to believe the defendant would keep such evidence 2 years after the murder in a place he only lived in for a few months, it was not "entirely unreasonable" for officers to believe that. If the defendant did not promptly get rid of the gun, he would keep it around, and it would not be unusual for someone to keep shoes 2 years, if the murderer did not realize he had left shoeprints behind. And it was not a Franks violation to omit the fact officers surveilling the apartment did not see the defendant with a gun or wearing shoes matching the footprint. The magistrate would have inferred that fact from the lack of such an allegation.

U.S. v. Escobar-Aguirre, 2010 WL 4359171 (11/4/10) (Kan.) (unpub'd) - The defendant argued the d. ct. should disagree with the reentry guidelines as a matter of policy because they were not empirically developed. The d. ct. responded that it did not believe it was its role to categorically find the guidelines should not be followed even if it believed as a matter of policy the guidelines resulted in excessive sentences. Instead, the d. ct. found the defendant's circumstances typical for a reentry defendant and thus a guideline sentence was warranted. The d. ct. did say it recognized it did not have to follow the guidelines. The 10th holds the d. ct. was entitled to defer to the guidelines. The d. ct. did not misapprehend its authority. And the 10th refuses to find the within-guideline-range reentry sentence substantively unreasonable under the 9th's Amezcua-Vasquez case, even though the conviction that triggered the enhancement was 18 years old.

Garcia v. Figueroa, 2010 WL 4367139 (11/5/10) (unpub'd) - It was reasonable for Colorado courts to decide the habeas petitioner was not in custody for Miranda purposes, even though the officer issued a "Notice to Appear," which may have led the petitioner to believe he was going to be arrested, and told the petitioner he didn't need a lawyer.

U.S. v. Abston, 2010 WL 4367124 (11/5/10) (Okl.) (unpub'd) - Counsel was not deficient for failing to obtain a government agreement to move for a 5k1.1 departure because the government has "almost boundless discretion" whether to move for such a departure.

Sheriff Not Responsible for Officer's Unlawful Tasering of Immigration Detainee; Summary Judgment Upheld

Porro v. Barnes, ___ F.3d ___ , 2010 WL xxxx, No. 10-6002 (10th Cir. 2010) (OK)
Plaintiff, an immigration detainee, was tasered 3 times after being strapped into a restraint chair. District court awarded him $100k against the cop who tasered him, but granted summary judgment for the sheriff and his successor. Court upholds the summary judgment. First, it narrows Plaintiff’s excessive force claim, since he is like a pretrial detainee, as raising a due process violation within the meaning of the 5th and 14th Amendments. Under this standard, there has been no showing of “direct personal responsibility” by the sheriff for the tasering. Under this due process theory, supervisory liability does not apply. Second, the sheriffs, in their official capacities, are not liable for failure to train on proper use of tasers. Plaintiff cannot show the “deliberate indifference” required to the constitutional rights being violated and the need for training. There was policy in place, which the one cop violated. Also, although the federal policy forbids use of tasers on immigration detainees, violation of that policy does not mean there has been a constitutional violation.