Thursday, March 24, 2011

Mortgage Fraud Conviction, Sentence Affirmed

US v. Washington, 2011 WL 1025750, No. 10-3144 (10th Cir. 3/23/11): Defendant convicted of conspiracy to commit wire and mail fraud, wire fraud, and commercial carrier fraud, based on a mortgage fraud scheme involving several loans and properties. On appeal, he claimed the evidence was insufficient on the commercial carrier fraud count because the delivery of the mortgage closing documents by FedEx to the lender was not essential to the scheme and occurred after the scheme had been completed. The Tenth rejects the argument, because it was well within reason for the jury to conclude defendant knew about the industry practice and would foresee the use of Federal Express in closing.

Defendant also challenged his sentence, asserting that assignment of any loans before final sale of the foreclosed properties should have been taken into account in the loss calculation under USSG 2B1.1. The Court affirms the general rule, "Where a lender has foreclosed and sold the collateral, the net loss should be determined by subtracting the sales price from the outstanding balance on the loan." It was "appropriate to include the loss incurred by intermediary lenders in the loss calculation." Conviction and sentence affirmed.

Tuesday, March 22, 2011

U.S. v. Cudjoe, 2011 WL 904418 (3/15/11) (Okl.) (Published) - The 10th holds U.S. v. Corey, 999 F.2d 493 (10th Cir. 1993) is no longer good precedent. In Corey, the 10th held a 924(c)(1) violation was a Class D felony and so the maximum supervised release term that could be imposed for that offense was 3 years. But since then Congress made the 5 year sentence for 924(c)(1) a mandatory minimum and made the maximum life. Therefore now it is a class A felony and a 5-year supervised release term is OK. So, even though the defendant's plea agreement indicated the maximum supervised-release term was 3 years, it was OK to impose a 5-year term. Mr. Cudjoe's appeal waiver was therefore enforceable because he didn't receive an illegal sentence.

Howards v. McLaughlin, 2011 WL 856275 (3/14/11) (Colo.) (Published) - Bad 4th Amendment, but good 1st Amendment, decision. While at a shopping mall, Secret Service Agents guarding former V.P. Dick Cheney, overheard the plaintiff saying on a phone that he was going to ask Mr. Cheney how many kids he had killed that day. The agents were "disturbed" by this. The plaintiff went up to Cheney and informed Mr. Cheney his policies were "disgusting," to which Cheney cleverly and graciously responded: "Thank you." The plaintiff unfortunately then patted the V.P.'s shoulder. The agents, investigating whether the plaintiff had assaulted the V.P., later asked the plaintiff if he had touched Cheney and the plaintiff denied that he had. The plaintiff was arrested for assault. Under this scenario there was probable cause to arrest the plaintiff for lying to the agents in violation of 18 U.S.C. § 1001. It didn't matter that the agents arrested him for an entirely different offense. But under 10th Cir. law, which is actually better than some other circuits' law, the plaintiff had alleged enough to prevail on his 1st Amendment claim for retaliating against him based on his expression of political views. Lack of probable cause was not a precondition for a 1st amendment claim.

U.S. v. Tony, 2011 WL 906275 (3/17/11) (N.M.) (Published) - The § 2255 movant waived his contention that his offense was not committed in Indian Country by failing to raise it on direct appeal. While it is true that subject-matter jurisdiction cannot be waived, whether a crime is committed in Indian Country is an offense element question, not a matter of "jurisdiction." The defendant also waived his double-jeopardy argument by not raising it on appeal.

Brace v. U.S., 2011 WL 915178 (3/15/11) (Kan.) (Published) - The 10th follows its recent decision that an actually- innocent person cannot get relief on a successive petition based on a favorable interpretation of a criminal statute by the S. Ct. But the 10th adds that the defendant wouldn't be entitled to relief anyway because the S. Ct.'s decision in U.S. v. Santos, 553 U.S. 507 (2008), that "proceeds" under the money-laundering statute only refers to profits does not necessarily apply to drug sales.

Padilla-Caldera v. Holder, 2011 WL 856272 (3/14/11) (Published) - U.S. citizen wife of Mexican petitioner filed an alien relative petition for him. After the petition was approved, the couple went to Mexico, which the husband had to do at that time, so that the husband could apply for an immigrant visa. The U.S. Consulate said the petitioner was ineligible for a visa because he was inadmissible. The wife returned to the U.S. to file for a waiver of inadmissibility, But she fell ill and asked the petitioner to return to the U.S. to help her. He reentered without inspection and that eventually doomed his chances for legal residence in the U.S. An immigration provision made him permanently inadmissible because he had been in the U.S. illegally for more than a year and then left and reentered illegally. The 10th reversed a BIA decision that the petitioner was ineligible for status adjustment because there was another conflicting statute that would allow the petitioner's admission. While the petitioner's subsequent immigration proceedings were proceeding, the BIA issued an interpretation in another case that the evil statute prevailed over the conflicting kind statute due to Congress' dislike of recidivist immigration violators. So, based on that new case, the BIA again held the petitioner was not eligible for adjustment of status. The 10th holds that the intervening BIA decision, along with the Chevron deference to the BIA's interpretations of immigration law, overrode the law-of-the-case doctrine. The petitioner is out of luck.

Reyna v. Ledezma, 2011 WL 892781 (3/16/11) (Okl.) (unpub'd) - This case is not note-worthy for the decision, but for the lesson the facts teach. The BOP found the prisoner ineligible for RDAP because his revelations during his PSR interview did not indicate he had a "verifiable substance use disorder." He only admitted to occasionally drinking whiskey, smoking marijuana for 2 years and using ecstasy once.

Thursday, March 10, 2011

U.S. v. Johnson, 2011 WL 729232 (3/3/11) (Kan.) (unpub'd) - Michigan v. Summers, 452 U.S. 692 (1981), which holds that officers may detain any "occupant" of property that the officers are searching pursuant to a warrant, is a bright-line rule that is not subject to an ad hoc balancing test. It doesn't matter whether detention serves any legitimate interest. In this case, the defendant was found sleeping in a car that was half on the property and half off of it. and had no other relationship to the property. "Occupant" includes anyone present on the premises. The fact that the search was for meth and firearms and the high level of traffic in the area justified displaying firearms and handcuffing the defendant.

Colbert v. Board of County Commissioners for Oklahoma County, 2011 WL 692991 (3/1/11) (unpub'd) - The 10th reverses the dismissal of a § 1983 complaint and finds the prisoner alleged enough that, if true, would establish deliberate indifference to medical needs constituting cruel and unusual punishment. The prisoner's mother told a correctional officer that her son had a knot on his head and a fever. The next morning the officer saw that the prisoner had vomited and defecated on himself and was not talking normally and had a large knot on his head. The officer talked to a nurse, but only said the prisoner's face was a little swollen and he might have pink eye. The nurse told the officer to give the prisoner some tylenol. That afternoon the officer found the prisoner non-responsive, lying in his own vomit. The officer called a nurse, who told the officer to call an ambulance. Before doing that, the officer spent six minutes on the phone with her supervisor, saying the prisoner should have gone to the hospital a long time ago. The prisoner had a traumatic brain injury, which has left him non-verbal and non-ambulatory, he's fed intravenously and he breathes with a ventilator.

Davtyan v. Holder, 2011 WL 75483 (3/4/11) (unpub'd) - A rare victory for an alien on a petition for review. The Immigration Judge's findings were not conducive to meaningful review because it both acknowledged that Jehovah's witnesses received disproportionate punishment in Armenia for refusing military service and that there was no evidence of that.

Broadus v. Jones, 2011 WL 678391 (2/28/11) (unpub'd) - The petitioner's habeas petition challenging his robbery conviction was a successive petition because he had previously challenged his assault conviction that was part of the same judgment. You have to challenge all the convictions in one judgment in the same petition.

Smith v. Veterans Administration, 2011 WL 692969 (3/1/11) (Utah) (Published) - Yet another published case on how to count 3 strikes in order to sanction litigants for filing frivolous suits. The most significant feature of the case: the plaintiff filed motions that appeared to contain proposals of marriage to one of the district court clerks.

New Criminal Pattern Jury Instructions Issued by Tenth Circuit

There is a new 2011 edition of the Tenth Circuit Pattern Jury Instructions (Criminal). They are not yet posted on the Tenth Circuit's website, but they can be found on WestLaw. The Introduction says the Committee has updated all Apprendi references in light of case law developments, comments and use notes have been updated, and some instructions have been substantially revised, such as those for narcotics, coercion and duress, voluntariness of confessions, instructions before trial (in light of computer and cell phone access by jurors), and partial verdict instructions. References to unpublished decisions have been removed, as have most references to other circuit decisions.

Wednesday, March 02, 2011

Important S. Ct. News and some 10th Cir. cases.

First, the S. Ct.:

Michigan v. Bryant, 2011 WL 676964 (2/28/11) - By a 6-2 vote [Justice Kagan recusing], with Justice Sotomayor writing for the majority and Justices Scalia and Ginsburg dissenting,the S. Ct. explains further what it means by "testimonial" under Crawford and it's not a pretty picture. The S. Ct. applies the test it set out in Davis v. Washington, 547 U.S. 813 (2006): whether the circumstances of the interaction between the declarant and the police objectively indicate the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency and not to create a record for trial. In the application of the test, as Justice Scalia points out, the majority seems to ignore reality. In this case, the declarant was shot through the front door of the defendant's home and found 25 minutes later a few blocks away bleeding to death at a gas station. 5 police officers asked him about what happened and the declarant blamed the defendant but did not explain why he was shot [while also repeatedly asking when the ambulance was going to arrive].

The Court decided the critical question should be answered from the perspective of both the officer and the declarant, recognizing they both might have mixed motives. The court should assess the circumstances and the statements and actions of the interrogation participants. And they should be assessed from the parties' perspective at the time of the encounter, not in hindsight. Factors to consider include: the danger to the officers and the public at large, not just to the victim; the weapon used [here a gun is more dangerous to the public than the fists in Davis]; the severity of the injury to the declarant [showing how dangerous the criminal at large is and whether the declarant has the ability to have a purpose in talking]; informality [the more informal, the less likely the statements are testimonial]. The Court rejects Justice Thomas' requirement that the circumstances be formal before the statements can be considered testimonial. The Court said circumstances might evolve to testimonial circumstances if the threat is neutralized. Also, the Court seemed to retreat somewhat to the Roberts analysis, noting that excited utterances are reliable because they are not made to create a record for trial. Finally, the Court did not address the suggestion in Crawford that a dying declaration might be an exception to the testimonial rule because the state did not preserve that argument..

In this case, the statements were non-testimonial because the purpose of the statements was to deal with the ongoing threat of the defendant, even though no shots were being fired at the moment. He could have been anywhere endangering others. Because the officers didn't know the motive of the shooter, he might not have been satisfied just killing the declarant. The circumstances were disorganized, unstructured,

Justice Scalia thought the inquiry should focus on the purpose of the declarant and that the majority's notion that the purpose of the interrogation was protection against the shooter was "so transparently false that professing to believe it demeans this institution." Justice Scalia pointed out how unlikely it was that the defendant was a serial killer out to kill more people or to re-shoot the declarant while he was surrounded by 5 officers. He saw the decision as creating a Confrontation Clause exception for violent crimes and a possible re-encroachment of the Roberts reliability test.. He concluded: "Judicial decisions, like the Constitution, depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges' policy preferences. Today's opinion falls far short of living up to that obligation. . . . Bryant may have received his just desserts. But he surely has not received them pursuant to the procedures our Constitution requires. And what has been taken away from him has been taken away from us all." Justice Ginsburg agreed that the statements were testimonial, but also noted that the dying declaration may be an exception to Crawford.

Walker v. Martin, 2011 WL 611627 (2/23/11) - Another unanimous slap-down of the 9th Circuit in a habeas case. California's habeas timeliness rule that does not have a specific deadline but only prohibits "substantial delay" is an adequate and firmly established rule so as to count as a procedural bar to federal habeas relief. Even if the timeliness rule is enforced some times in a seemingly inconsistent way, it was not applied in a surprising or unfair manner in the petitioner's case, where he delayed five years. California has not operated in a way that discriminates against claims of federal rights.

10th Cir. cases:

U.S. v. Davis, 2011 WL 668117 (2/25/11) (Published) - The troopers had reasonable suspicion during a traffic stop to detain for a canine sniff. (1) The driver and passenger provided conflicting travel plans, which in turn conflicted with the rental car paperwork. (2) They were abnormally nervous. The driver"was about to jump out of his pants, he was so nervous." (3) The passenger had a prior record for dealing cocaine. (4) They were traveling in a rental car. The consent to search was voluntary since the defendant thoughtfully opted to allow an immediate search rather than wait 30 minutes for the dog.

It was okay to impose an § 851 mandatory minimum 20 years where the notice of the prior conviction had a case number referring to a different "Andre Davis." The notice was adequate, "if barely." The defendant never denied he had been convicted as alleged and didn't raise below the fact that the number was wrong, despite having 4 opportunities to do so. There was no prejudice under the plain-error test.

It was okay to admit, under 404(b), evidence that the defendant was subsequently found with keys in his pocket to a rental car with cocaine in it. The evidence tended to show he knowingly participated in the charged offense involving cocaine found in a rental car, no unfair prejudice was apparent to the 10th and a limiting instruction was given during the final instructions.

U.S. v. Story, 2011 WL 590353 (Okl.) (2/22/11) (Published) - The 10th rules that it was error for the d. ct. to impose a longer prison sentence in order to enable the defendant to get into a prison drug rehabilitation program because 18 U.S.C. § 3582(a) says "imprisonment is not an appropriate means of promoting rehabilitation." The 10th goes on, however, to deny relief because the error was not "plain." Oddly, as noted by the 10th, the S. Ct. will soon decide the issue in Tapia v. U.S.. If the S. Ct. rules in the defendant's favor, the d. ct.'s error would then be "plain" as properly viewed at the time of appeal.

Prost v. Anderson, 2011 WL 590334 (2/22/11) (Colo.) (Published) - The federal defendant alleged he was innocent of his money laundering conviction because of the S. Ct.'s decision in U.S. v. Santos, 553 U.S. 507 (2008). Unfortunately, he had already filed an unsuccessful § 2255 motion. He argued he should be able to avoid the impossible-to-meet successive petition requirements of § 2255(h) on the grounds that § 2255 did not provide an adequate remedy and so § 2241 provided a vehicle for relief. Too bad, says the 10th, even if the defendant is actually innocent, Congress explicitly set up a system where a defendant couldn't get § 2255 relief based on a new statutory interpretation, if he already filed a § 2255 motion. Concurring and dissenting Judge Seymour would have denied relief also, but only on the ground that the defendant was not foreclosed by circuit law from raising the Santos issue on direct appeal. She pointed out not even the government advocated the harsh principles the majority espoused.

U.S. v. Easterwood, 2011 WL 635301 (2/23/11) (Wyo.) (unpub'd) - It was okay to admit a photo of the defendant's son's messy room to show the son had an Xbox to access games and so wouldn't be using the defendant's computer that had child porn in it. But it was wrong for the prosecutor to say in closing "Is that the bedroom of a well-cared-for child that's been protected?" But the evidence was so strong the prejudice prong of the plain-error standard was not met. The 10th finds no plain error in the use of the financial affidavits to evidence the defendant's handwriting and spelling. There is a conflict in the circuits whether using the documents for spelling violates the Fifth Amendment, but the conflict shows the error is not plain. And there was no clear law re: the Sixth Amendment. But the 10th goes on to chastise the government: "there was no reason for the government to inject into this trial documents for indigency for appointed counsel, the use of which risked compromising the defendant's Sixth Amendment right to access to counsel. It should have used other available means."

U.S. v. Legge, 2011 WL 635573 (2/23/11) (Utah) (unpub'd) - The d. ct. did not clearly err when it found the defendant had violated a Utah law that requires a driver to move out of the lane next to a police car with flashing lights "if practical, with due regard to safety and traffic conditions." Two cars in the lane into which the defendant was expected to change were traveling five seconds apart. That gave the defendant plenty of time to safely change lanes.

Nasious v. City and County of Denver, 2011 WL 595789 (2/22/11) (Colo.) (unpub'd) - The 10th applies equitable tolling. A magistrate judge ordered the plaintiff to decide which of 3 separate claims he wished to pursue and dismiss the others. When he did so and then filed a separate complaint listing one of the dismissed claims, his complaint was dismissed on timeliness grounds. The plaintiff should have been told he could sever his claims. The plaintiff should not be punished for following the magistrate judge's order.