A few 10th Circuit cases, including a defense victory in a published case!
U.S. v. Goodman, 2011 WL 258282 (1/28/11) (Okl.) (Published) - Where PTSD insanity was the defense, the d. ct. reversibly erred when it limited the testimony of lay witnesses to their observations immediately before the robberies and precluded lay opinions on the defendant's sanity. The defendant preserved his claims because he laid out what the witnesses would testify about and the d. ct. ruled unequivocally pretrial. Lay witnesses have broad latitude in insanity trials. The proffered evidence was not too stale where the oldest evidence was 3 years old and all were part of a continuous pattern. The exclusion of that evidence was not harmless, since it compromised the defendant's ability to persuade the jury and affected counsel's defense strategy. And no evidence rules preclude lay opinion, as opposed to expert opinion, about a defendant's mental state. The d. ct. still had discretion to decide if the lay opinions had sufficient foundation or were violative of Rule 403. The error was not harmless because it might have affected defense strategy. On the other hand, it was okay for the government to ask its expert a hypothetical question as to whether the defendant's actions during the robbery were consistent with someone having PTSD. That did not call for an opinion on the ultimate issue of the defendant's mental state, although it was the next-to-last step in the process.
Olivan-Duenas v. Holder, 2011 WL 223804 (1/26/11) (unpub'd) - The BIA did not arbitrarily interpret 8 U.S.C. ยง 1182(h), which allows an alien to adjust status to an LPR when a prior conviction "relates to simple possession of marijuana." The BIA decided possession of marijuana within a drug-free zone was more than simple possession and therefore the alien's conviction for that offense disqualified him from adjusting his status. It was reasonable to conclude the location of the crime is a sufficiently aggravating feature. And perhaps giving us insight into how the 10th thinks about our clients, it says it was not inconsistent for the BIA to interpret the term "relates to" narrowly in this context, but broadly when it makes more offenses aggravated felonies. The BIA is just consistently treating criminality as a presumptive disqualifier.
Wright v. Arellano, 2011 WL 223736 (1/26/11) (Colo.) (unpub'd) - The state reasonably decided the trial court was not under a duty to investigate the defendant's competence when in response to questions regarding his right to testify, the defendant said: "I've been sitting in this trial; I don't know what's going on. . . . I really don't know what point in time this is. . . . we can just move forward without me testifying, I guess. And just whatever y'all have to do, do it."
U.S. v. Lopez, 2011 WL 208426 (1/25/11) (Colo.) (unpub'd) - It was not structural error that one of the written jury instructions said the government had to prove the defendant's guilt beyond a reasonable "double." The Court read to the jury "doubt", not "double," and there were other instructions that said "doubt."
U.S. v. Gonzalez, 2011 WL261756 (1/28/11) (N.M.) (unpub'd) - The 10th affirms a sentence following an Anders brief without the defendant getting notice of counsel's wish to withdraw. The 10th says it tried to contact the defendant, but the Inmate Locator Internet site kept saying the defendant was in transit and the court's letters were returned as undeliverable when they were sent to the address counsel gave the 10th.
U.S. v. Goodman, 2011 WL 258282 (1/28/11) (Okl.) (Published) - Where PTSD insanity was the defense, the d. ct. reversibly erred when it limited the testimony of lay witnesses to their observations immediately before the robberies and precluded lay opinions on the defendant's sanity. The defendant preserved his claims because he laid out what the witnesses would testify about and the d. ct. ruled unequivocally pretrial. Lay witnesses have broad latitude in insanity trials. The proffered evidence was not too stale where the oldest evidence was 3 years old and all were part of a continuous pattern. The exclusion of that evidence was not harmless, since it compromised the defendant's ability to persuade the jury and affected counsel's defense strategy. And no evidence rules preclude lay opinion, as opposed to expert opinion, about a defendant's mental state. The d. ct. still had discretion to decide if the lay opinions had sufficient foundation or were violative of Rule 403. The error was not harmless because it might have affected defense strategy. On the other hand, it was okay for the government to ask its expert a hypothetical question as to whether the defendant's actions during the robbery were consistent with someone having PTSD. That did not call for an opinion on the ultimate issue of the defendant's mental state, although it was the next-to-last step in the process.
Olivan-Duenas v. Holder, 2011 WL 223804 (1/26/11) (unpub'd) - The BIA did not arbitrarily interpret 8 U.S.C. ยง 1182(h), which allows an alien to adjust status to an LPR when a prior conviction "relates to simple possession of marijuana." The BIA decided possession of marijuana within a drug-free zone was more than simple possession and therefore the alien's conviction for that offense disqualified him from adjusting his status. It was reasonable to conclude the location of the crime is a sufficiently aggravating feature. And perhaps giving us insight into how the 10th thinks about our clients, it says it was not inconsistent for the BIA to interpret the term "relates to" narrowly in this context, but broadly when it makes more offenses aggravated felonies. The BIA is just consistently treating criminality as a presumptive disqualifier.
Wright v. Arellano, 2011 WL 223736 (1/26/11) (Colo.) (unpub'd) - The state reasonably decided the trial court was not under a duty to investigate the defendant's competence when in response to questions regarding his right to testify, the defendant said: "I've been sitting in this trial; I don't know what's going on. . . . I really don't know what point in time this is. . . . we can just move forward without me testifying, I guess. And just whatever y'all have to do, do it."
U.S. v. Lopez, 2011 WL 208426 (1/25/11) (Colo.) (unpub'd) - It was not structural error that one of the written jury instructions said the government had to prove the defendant's guilt beyond a reasonable "double." The Court read to the jury "doubt", not "double," and there were other instructions that said "doubt."
U.S. v. Gonzalez, 2011 WL261756 (1/28/11) (N.M.) (unpub'd) - The 10th affirms a sentence following an Anders brief without the defendant getting notice of counsel's wish to withdraw. The 10th says it tried to contact the defendant, but the Inmate Locator Internet site kept saying the defendant was in transit and the court's letters were returned as undeliverable when they were sent to the address counsel gave the 10th.
posted by Anonymous at 2:40 PM
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