Wednesday, November 17, 2010

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.