A few 10th Cir. cases, with two defense victories!!! and some S. Ct. news. First, the 10th:
U.S. v. Dobbs, 2011 WL 14459 (1/5/11) (Okl.) (Published) - An incredible child porn evidence-insufficiency defense victory. The case ended up with only 2 images as the subject of the prosecution for knowingly receiving child porn. The government showed the defendant had on numerous occasions deliberately searched for child porn with particular search terms. But it had not shown such a thing right before the particular images were captured in the computer's cache. Nor had the government shown the defendant visited a child porn website immediately preceding the caching of the 2 images. A user does not have to see an image that ends up in the cache. The government had not shown the defendant knew about the automatic-caching function of the computer. There was no evidence the defendant actually viewed the 2 images. The majority (Judges Holmes and Holloway) rejected the government's position that it was enough for it to show the defendant intentionally sought out child porn without showing the defendant actually knowingly received the porn. The majority also held, for the same reasons, there was insufficient evidence of attempted receiving of child porn.
Judge Briscoe dissented. She thought the jury could infer knowing receipt from the defendant's obvious attempts to look for child porn, the expert's testimony that the images didn't get in the cache by accident, the notion that the defendant could have gone straight to a website without doing a google-search and the inference that once he got to a website he would look at all the pictures on it. With respect to the interstate element, Judge Briscoe thought that element could be satisfied without showing the particular images were sent from another state because images are never sent through a computer; only copies are made at the other end. So the government just had to show the image was made in another state. Judge Briscoe was worried that the majority's rulings would make it impossible for the government to ever prove a child porn offense.
U.S. v. Flonnory, 2011 WL 14465 (1/5/11) (Okl.) (Published) - An assimilated crimes case on military land---Fort Sill. Under the common law, jurisdiction of the crime of false pretenses is where the property is obtained, not where the lies were told. Nonetheless, the government presented sufficient evidence the victim gave the money to the defendant, a co-employee, at their workplace on the base. There was no need for an instruction to the jury not to speculate, where the court did instruct the jury it was permitted to draw reasonable inferences from the evidence. The alleged errors in the loss calculation were not enough to result in a lower offense level. The conflict in testimony was enough to support a finding that the defendant committed perjury when he testified, warranting an obstruction-of-justice enhancement. And, while the d. ct. may not have made the specific findings to justify such an enhancement, reversal was not required under the plain error standard because it was very doubtful the d. ct. would refuse to impose the enhancement if it made specific findings.
U.S. v. Hernandez-Mejia, 2011 WL 44497 (1/7/11) (N.M.) (unpub'd) - An embarrassment to appointed counsel, but a Speedy Trial Act victory for the defendant. Counsel submitted an Anders brief, but the 10th saw merit in the defendant's pro se motion below. The 10th commended Judge Browning for considering the defendant's pro se motion, even though his counsel before the d. ct. refused to adopt the motion. However, the judge was wrong on the merits. 4 orders did not comply with the requirements of Toombs to set out specific, nonconclusory reasons why continuances were necessary. 3 defense motions for continuance just contained short boilerplate, And the government's continuance motion only said the prosecutor was out of town for parts of July and the trial was continued until September without explanation. The d. ct. can now decide if the case should be dismissed with or without prejudice.
U.S. v. Sanchez-Gallegos, 2011 WL 9836 (1/4/11) (N.M.) (unpub'd) - 3 judges with 3 different reasons why the defendant loses regarding Miranda rights at the border. Judge Holmes finds Miranda doesn't apply because the defendant was not in custody in the context of a routine fixed border checkpoint stop under U.S. v. Massie, 65 F.3d 843 (10th Cir. 1995). Judge Briscoe thought Massie didn't apply because the stop was more than brief and unintrusive, given that the defendant was patted down, his SUV searched and the stop lasted 40-50 minutes before the problematic statement. But, under the totality of the circumstances, the defendant was not in custody for Miranda purposes, she decided. Judge Ebel thought the defendant was in Miranda custody, (but not coerced), because of the police-dominated atmosphere with 2 officers interrogating him and 2 others searching his SUV, the accusatory questioning and the failure to inform him that he was free to end the interview. But, the erroneous admission of statements obtained in violation of Miranda was harmless, Judge Ebel finds. He applies Justice Kennedy's concurrence as the narrowest ground for the ruling in Missouri v. Seibert, 542 U.S. 600 (2004), which requires suppression of post-Miranda- warning statements following a Miranda violation only if the officers engaged in a deliberate 2-step interrogation process. There was no evidence the officers engaged in such a procedure. Judge Ebel acknowledges application of the principles applied by the 4-justice plurality in Seibert might lead to a different conclusion. Anyway, because the defendant's statements after the Miranda warning were admissible and those statements were much more incriminatory than the pre-Miranda warning statements, the error in admitting the latter statements was harmless. Judge Ebel elected to decide the harmlessness issue, even though the government had not argued harmlessness.
U.S. v. Vasquez, 2010 WL 5262730 (12/27/10) (Kan.) (unpub'd) - The defendant's appeal of his pretrial detention order was mooted once he pleaded guilty. The standards for release after a conviction are different.
Pavatt v. Mathews, 2010 WL 5365065 - The recent lethal injection case is now published.
S. Ct. News:
A couple of cert grants:
McNeill v. U.S., 2011 WL 48124 (1/10/11) - Whether a conviction can be treated as a serious drug offense under the ACCA when the maximum sentence was less than 10 years at the time of sentencing but was at least 10 years when the offense was committed.
Leflar v. Cooper, 2011 WL 48029 (1/10/11) & Missouri v. Frye, 2011 WL 48055 (1/10/11) - Both cases involve mistakes by counsel regarding taking a plea bargain. One minimized the consequences of going to trial and the other didn't tell the defendant about a plea offer. The question is whether there is relief, [and, if so, what relief] for these deficient performances, if in the end the defendants did receive fair trials, albeit with much higher sentences than they would have received, had they accepted the plea bargains. The 10th is generally on the pro-defense side of this issue. See Williams v. Jones, 571 F.3d 1086 (10th CIr. 2009), with Judge Gorsuch dissenting.
Alderman v. U.S., No. 09-1555 (1/10/11) - Justices Thomas and Scalia dissent from the denial of a defendant's cert petition regarding the Commerce Clause power to regulate body armor. Justice Thomas notes, as has the 10th, U.S. v. Patton, 451 F.3d 615 (10th Cir. 2006), there is much tension between circuit courts' interpretation of Scarborough v. U.S., 431 U.S. 563 (1977) and subsequent Commerce Clause cases, such as U.S. v. Lopez, 514 U.S. 549 (1995). The circuits have elected not to apply the Lopez analysis to felon-in-possession of firearm and body armor cases because of Scarborough. As a result, all it takes for federal jurisdiction is the manufacture of the firearm or body armor in one state and its arrival at some time in the past in another state, even when the defendant did not acquire the item from out of state. Justice Thomas is troubled that this eliminates any real restriction on Congress' usurpation of states' plenary police power.
U.S. v. Dobbs, 2011 WL 14459 (1/5/11) (Okl.) (Published) - An incredible child porn evidence-insufficiency defense victory. The case ended up with only 2 images as the subject of the prosecution for knowingly receiving child porn. The government showed the defendant had on numerous occasions deliberately searched for child porn with particular search terms. But it had not shown such a thing right before the particular images were captured in the computer's cache. Nor had the government shown the defendant visited a child porn website immediately preceding the caching of the 2 images. A user does not have to see an image that ends up in the cache. The government had not shown the defendant knew about the automatic-caching function of the computer. There was no evidence the defendant actually viewed the 2 images. The majority (Judges Holmes and Holloway) rejected the government's position that it was enough for it to show the defendant intentionally sought out child porn without showing the defendant actually knowingly received the porn. The majority also held, for the same reasons, there was insufficient evidence of attempted receiving of child porn.
Judge Briscoe dissented. She thought the jury could infer knowing receipt from the defendant's obvious attempts to look for child porn, the expert's testimony that the images didn't get in the cache by accident, the notion that the defendant could have gone straight to a website without doing a google-search and the inference that once he got to a website he would look at all the pictures on it. With respect to the interstate element, Judge Briscoe thought that element could be satisfied without showing the particular images were sent from another state because images are never sent through a computer; only copies are made at the other end. So the government just had to show the image was made in another state. Judge Briscoe was worried that the majority's rulings would make it impossible for the government to ever prove a child porn offense.
U.S. v. Flonnory, 2011 WL 14465 (1/5/11) (Okl.) (Published) - An assimilated crimes case on military land---Fort Sill. Under the common law, jurisdiction of the crime of false pretenses is where the property is obtained, not where the lies were told. Nonetheless, the government presented sufficient evidence the victim gave the money to the defendant, a co-employee, at their workplace on the base. There was no need for an instruction to the jury not to speculate, where the court did instruct the jury it was permitted to draw reasonable inferences from the evidence. The alleged errors in the loss calculation were not enough to result in a lower offense level. The conflict in testimony was enough to support a finding that the defendant committed perjury when he testified, warranting an obstruction-of-justice enhancement. And, while the d. ct. may not have made the specific findings to justify such an enhancement, reversal was not required under the plain error standard because it was very doubtful the d. ct. would refuse to impose the enhancement if it made specific findings.
U.S. v. Hernandez-Mejia, 2011 WL 44497 (1/7/11) (N.M.) (unpub'd) - An embarrassment to appointed counsel, but a Speedy Trial Act victory for the defendant. Counsel submitted an Anders brief, but the 10th saw merit in the defendant's pro se motion below. The 10th commended Judge Browning for considering the defendant's pro se motion, even though his counsel before the d. ct. refused to adopt the motion. However, the judge was wrong on the merits. 4 orders did not comply with the requirements of Toombs to set out specific, nonconclusory reasons why continuances were necessary. 3 defense motions for continuance just contained short boilerplate, And the government's continuance motion only said the prosecutor was out of town for parts of July and the trial was continued until September without explanation. The d. ct. can now decide if the case should be dismissed with or without prejudice.
U.S. v. Sanchez-Gallegos, 2011 WL 9836 (1/4/11) (N.M.) (unpub'd) - 3 judges with 3 different reasons why the defendant loses regarding Miranda rights at the border. Judge Holmes finds Miranda doesn't apply because the defendant was not in custody in the context of a routine fixed border checkpoint stop under U.S. v. Massie, 65 F.3d 843 (10th Cir. 1995). Judge Briscoe thought Massie didn't apply because the stop was more than brief and unintrusive, given that the defendant was patted down, his SUV searched and the stop lasted 40-50 minutes before the problematic statement. But, under the totality of the circumstances, the defendant was not in custody for Miranda purposes, she decided. Judge Ebel thought the defendant was in Miranda custody, (but not coerced), because of the police-dominated atmosphere with 2 officers interrogating him and 2 others searching his SUV, the accusatory questioning and the failure to inform him that he was free to end the interview. But, the erroneous admission of statements obtained in violation of Miranda was harmless, Judge Ebel finds. He applies Justice Kennedy's concurrence as the narrowest ground for the ruling in Missouri v. Seibert, 542 U.S. 600 (2004), which requires suppression of post-Miranda- warning statements following a Miranda violation only if the officers engaged in a deliberate 2-step interrogation process. There was no evidence the officers engaged in such a procedure. Judge Ebel acknowledges application of the principles applied by the 4-justice plurality in Seibert might lead to a different conclusion. Anyway, because the defendant's statements after the Miranda warning were admissible and those statements were much more incriminatory than the pre-Miranda warning statements, the error in admitting the latter statements was harmless. Judge Ebel elected to decide the harmlessness issue, even though the government had not argued harmlessness.
U.S. v. Vasquez, 2010 WL 5262730 (12/27/10) (Kan.) (unpub'd) - The defendant's appeal of his pretrial detention order was mooted once he pleaded guilty. The standards for release after a conviction are different.
Pavatt v. Mathews, 2010 WL 5365065 - The recent lethal injection case is now published.
S. Ct. News:
A couple of cert grants:
McNeill v. U.S., 2011 WL 48124 (1/10/11) - Whether a conviction can be treated as a serious drug offense under the ACCA when the maximum sentence was less than 10 years at the time of sentencing but was at least 10 years when the offense was committed.
Leflar v. Cooper, 2011 WL 48029 (1/10/11) & Missouri v. Frye, 2011 WL 48055 (1/10/11) - Both cases involve mistakes by counsel regarding taking a plea bargain. One minimized the consequences of going to trial and the other didn't tell the defendant about a plea offer. The question is whether there is relief, [and, if so, what relief] for these deficient performances, if in the end the defendants did receive fair trials, albeit with much higher sentences than they would have received, had they accepted the plea bargains. The 10th is generally on the pro-defense side of this issue. See Williams v. Jones, 571 F.3d 1086 (10th CIr. 2009), with Judge Gorsuch dissenting.
Alderman v. U.S., No. 09-1555 (1/10/11) - Justices Thomas and Scalia dissent from the denial of a defendant's cert petition regarding the Commerce Clause power to regulate body armor. Justice Thomas notes, as has the 10th, U.S. v. Patton, 451 F.3d 615 (10th Cir. 2006), there is much tension between circuit courts' interpretation of Scarborough v. U.S., 431 U.S. 563 (1977) and subsequent Commerce Clause cases, such as U.S. v. Lopez, 514 U.S. 549 (1995). The circuits have elected not to apply the Lopez analysis to felon-in-possession of firearm and body armor cases because of Scarborough. As a result, all it takes for federal jurisdiction is the manufacture of the firearm or body armor in one state and its arrival at some time in the past in another state, even when the defendant did not acquire the item from out of state. Justice Thomas is troubled that this eliminates any real restriction on Congress' usurpation of states' plenary police power.
posted by Anonymous at 11:24 AM
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