Conviction on Substantive Offense Vacated on Venue Grounds, But Conspiracy Conviction Stands

US v. Foy, -- F.3d --, 2011 WL 1957680 (10th Cir. 5/23/11) (KS) - conviction on attempt to possess with intent to distribute cocaine is vacated because of gov't failure to establish that Mr. Foy committed any act which constituted a substantial step toward commission of the substantive offense in Kansas. While venue in Kansas was proper re: conspiracy, because of co-conspirators' overt acts in furtherance of the conspiracy in Kansas, imputation was not proper to establish venue for the attempt charge since it does not require concerted activity.

The district court correctly denied suppression of wiretap evidence. Although the wiretap applications misstated the source of the source of the authority to file them, they were authorized by an executive official with the power to do so and so did not subvert the primary purposes of the wiretap statute's authorization requirement. The affidavits in support of the wiretap applications were sufficient to support the district judge's conclusion that the wiretaps were necessary.

Because Mr. Foy did not argue insufficiency of evidence of conspiracy in his motion for judgment of acquittal, his sufficiency of the evidence claim is reviewed for plain error only. The jury reasonably inferred that Mr. Foy and his co-defendant were dependent upon each other in their drug trafficking endeavors and the interdependence evidence was adequate to sustain his Mr. Foy's conspiracy conviction.

Defendant's Consent to Search Was Involuntary Where Agents Falsely Implied Defendant Was In Danger from a Bomb

U.S. v. Harrison, 2011 WL 1782961 (5/11/11) (Okl.) (Published) - The 10th affirms a district court's suppression grant because the defendant's consent to search was involuntary. At the defendant's apartment door, ATF agents falsely told the defendant the police had received an anonymous phone call saying there were drugs and bombs in the apartment. The defendant replied he didn't think there were bombs in his apartment. One of the agents said: "any time we get a phone call like this our boss makes us come and investigate and see if there's a threat or danger." One of the agents assured him they would not bust him for a small bag of weed. The district court found the ensuing consent involuntary because the agents implied the defendant might be in danger from a bomb. The government claimed the agents only implied the defendant was unlawfully possessing bombs. While officers can use deceit and trickery in some circumstances, the 10th ruled, deceit and trickery can render a consent involuntary where the misrepresentations deprive the individual "of the ability to make a fair assessment of the need to surrender his privacy." Here the court did not clearly err when it found the officers created the impression the defendant was in physical danger. The lack of advice that the defendant could refuse consent was also a factor. The defendant's willingness to sit in the living room during the agents' search did not mean he felt no threat. And, besides, his subjective fear is only one factor in the involuntariness analysis. The 10th emphasized it was the government's burden to prove the consent was voluntary.

Denial of Suppression Motion Reversed; Officer "Reasonably Could Have Observed" Van's Plate was Legal

U.S. v. Trestyn, 2011 WL 1783008 (5/11/11) (Wyo.) (Published) - Another suppression victory. The officer unreasonably extended the traffic stop because, as he approached the minivan, he reasonably could have observed the minivan's California license plate displayed a registration number in accordance with California law. At that point, the officer had no more justification to detain the occupants. In my mind, it's important that the 10th did not require that the officer actually notice that the plates were legal. It was enough that he "reasonably could have observed" that. The 10th reverses suppression denial.
In other issues, the district court did not abuse its discretion when it denied the defendant's request for a continuance of the suppression hearing to allow new counsel to represent her at the hearing. The defendant waited until the day before the hearing to make the request without explaining why she waited so long and her first counsel was prepared to represent her, The record was not developed enough for the 10th to decide a claim of ineffective assistance of counsel with respect to the suppression hearing. Both defendants waived a challenge to the stop itself because they had conceded below that it was justified at its inception. Importantly, raising the argument in a motion to reconsider did not undo the waiver.

Sentencing Victory! Tenth Reversing 2B1.1(b)(4) Enhancement and Imposition of Fine

U.S. v. Vigil, 2011 WL 1798020 (5/12/11) (Utah) (Published) - And yet another defense victory, this time in sentencing. The 2-level enhancement under USSG § 2B1.1(b)(4) when the defendant is "in the business of receiving and selling stolen property" only applies when the defendant has sold property stolen by others and is in that business. The intent of the provision is to extra-punish professional fences, not people who sell goods they have stolen or use goods others have stolen. In this case, the defendant was found with a bunch of stolen IDs and stolen checks. There was no evidence he had sold, or was going to sell, any stolen items. The government did not prove the error in imposing the enhancement was harmless, even though the d. ct. indicated it thought a higher sentence than the one it imposed may have been appropriate. The district court did not say it would impose the same sentence if it was wrong about what the range was and to impose the same sentence on remand it would have to vary upward 4 months.
The district court also erred when it imposed a fine without considering the defendant's ability to pay it [the presentence report said he did not have the ability to pay a fine and the government did not object to that finding] or the effect of the fine on the ability to pay restitution. The district court provided no reason for the imposition of a fine. The record indicated the court imposed the fine because it was disappointed the plea agreement restricted how much restitution it could order.

Tenth Addresses Inventory Search, Exigent Circumstances Issues

U.S. v. Creighton, 2011 WL 1797912 (5/12/11) (Solo.) (Published) - The officers conducted an inventory search of the defendant's luggage according to standard criteria where the standard operating procedures required inventorying "all personal property" coming into the department's possession. The defendant did not have a reasonable expectation of privacy in a hotel room where the defendant knew management had claimed the rent was overdue and had told the registered occupant to pay or vacate the premises. There might be an exception to this rule if there was a pattern or practice of allowing the person to stay beyond the check-out time, but there was no evidence of such here.
The 10th also found the officers reasonably believed exigent circumstances existed to remove the defendant from a home. The defendant's cohort falsely told police he threatened to hurt her mother, who was in the home, if she did not return to the home in 3 hours. The police had the cohort call the mother to come out of the house. When the mother came out she knew nothing about any threat to her, but the cohort never claimed the mother knew about the threat. The officers had 3 concerns that justified them threatening to send in a police dog if the defendant did not leave the house: (1) the cohort had said the defendant had held her against her will; (2) the defendant remained armed with a gun; and (3) he was engaged in forgery and fraud. Everything was okay because the police could take seriously the lies the cohort told until her story unraveled after the defendant's arrest. The officers had to secure the entire crime scene and gain safe access to all individuals before investigating. In addition, the majority suggested the defendant may have waived the argument that his removal from the home was unlawful when he failed to raise that issue during the government's prior interlocutory appeal as an alternative ground for affirming the d.ct.'s initial granting of the suppression motion, based on the illegality of the subsequent arrest. Judge Lucero concurred with the majority's decision on the merits, but strongly objected to the notion that the defendant may have waived an argument by not raising it during the government's appeal. He pointed out there was no authority a defendant must raise alternative arguments when the government appeals. He had no right to cross-appeal. Given the state of the record at the time, it may have been frivolous for the defendant to make the argument then.

No Abuse of Discretion to Deny Request for Attorney's Fees Under Hyde Amendment

U.S. v. Lain, 2011 WL 1798017 (5/12/11) (Kan.) (Published) - It was not an abuse of discretion for the district court to refuse to award the defendant attorney's fees under the Hyde Amendment on the grounds that the government's criminal charges against him were "vexatious, frivolous or in bad faith." The jury acquitted him of a charge of willfully transferring a gun interstate without using a licensed firearm dealer. The prosecutor's animosity towards the defendant did not show the prosecution was selective or vindictive. And there was sufficient evidence to justify the government pursuing the charge given the defendant's dishonest acquisition of the gun. A defendant can willfully violate a law without knowing about the law, as long as he intentionally undertakes an act he knows to be wrongful. The government's superseding charge of possessing a firearm while under indictment, even though the indictment in question had already been dismissed, was the result of sloppy work, not bad faith.

Section 2254 Petition Can't Be Used to Challenge State Courts' Interpretation of Statute

Anderson-Bey v. Zavaras, 2011 WL 1760026 (5/9/11) (Colo.) (Published) - The 10th explores when a 28 USC § 2254 challenge to the sufficiency of the evidence is really a challenge to the state courts' interpretation of a state statute. When it's the latter, the petitioner is out of luck. Here the Colorado courts decided that an employee of a sandwich shop was "in control of" the cash the petitioner took from the cash register, even though the employee did not handle the money and did not even know how to open the register. It was enough that he knew where the money taken from the register was hidden and he closed the business at the end of the day. This was a matter of state law which federal courts may not second-guess. The robbery conviction stands. And the petitioner could not challenge a different conviction that increased his robbery sentence because he had finished serving his sentence for the prior conviction and he did not claim he was deprived of his right to counsel with respect to the prior conviction.

Petitioner Lacked Colorable Claim to Actual Innocence

U.S. v. Payne, 2011 WL 1760423 (5/10/11) (Okl.) (Published) - The 10th explicitly overrules an old case that indicated a prisoner could only use § 2255 to overturn a sentence, not a conviction. Consequently, the petitioner's petition for writ of error coram nobis cannot succeed because he could have pursued § 2255 relief challenging his conviction when he was in custody. His § 2255 claim is now time-barred. He had not proven his actual innocence by showing officers involved in his case had worked with Tulsa officers indicted for planting evidence in other cases.

Crime of Moral Turpitude Includes Any Crime with Intent to Defraud

Rodrguez-Heredia v. Holder, 2011 WL 1770828 (5/10/11) (Published) - This is the case in which the 10th decided any crime with an intent to defraud was a crime of moral turpitude; it is now published at the government's request.

Sentencing Challenge Rejected

U.S. v. Saignaphone, 2011 WL 1807433 (5/12/11) (Colo.) (unpub'd) - The 10th discusses an argument that Congress intended for more people to get probation than the Sentencing Commission has provided for. The 10th holds, however, that the district court did not abuse its discretion in determining a sentence of home detention would be insufficient punishment for depriving taxpayers of 2.3 million dollars regardless of the defendant's lack of criminal history, her chances of recidivism and Congress' intent regarding probation.

Tenth Summarily Disposes of Reentry Issues

U.S. v. Villalobos-Lopez, 2011 WL 1807435 (5/12/11) (Colo.) (unpub'd) - While the 10th acknowledged its duty under Anders to conduct a "full examination of the record," the court appears unbothered by the fact that the presentence report was not in the record, [because neither counsel nor the alien defendant claimed there was any procedural errors], and that it couldn't tell from the little record it had whether the defendant had raised his arguments below about coming to this country to avoid being killed and mistakenly believing he could enter legally. To top it off, the 10th says an alien's reasons for illegal reentry cannot serve as a basis for departure, when the new § 2L1.2, n. 8 explicitly provides for departure where, among other things, the defendant's entry is motivated by cultural ties.

CJA Guidelines for Clemency Cases Amended

There are new CJA Guidelines regarding Section 2254 capital clemency ahttp://www.blogger.com/img/blank.gifppointments, budgeting and vouchers, announced SueAnn Fitch, CJA Supervising Attorney for the Tenth Circuit Court of Appeals. All the guidelines for death penalty and capital habeas corpus representations is available here.

The clemency guidelines now state:

§ 680 Clemency
§ 680.10 Clemency Representation by Counsel
§ 680.10.10 New Appointments
A new appointment for clemency representation is not necessary since, under 18 U.S.C. § 3599(e), each attorney appointed to represent the defendant for habeas corpus proceedings under 28 U.S.C. § 2254, unless replaced by similarly qualified counsel, "shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant."
§ 680.10.20 Motions to Withdraw

(a) Motions to withdraw from the clemency representation should be brought in the federal district court where the habeas corpus matter was filed.
(b) Upon granting a motion to withdraw, unless the defendant is represented by similarly qualified counsel or representation is waived by the defendant, the court shall appoint counsel to represent the defendant for any available clemency proceedings.

§ 680.20 Clemency Vouchers
§ 680.20.10 Issuance of Voucher for Clemency Work
Upon appointment of counsel for habeas corpus proceedings brought under 28 U.S.C. § 2254, the district court should issue appointed counsel two CJA payment vouchers (Form CJA 30 (Death Penalty Proceedings: Appointment of and Authority to Pay Court Appointed Counsel)); one designated for the habeas corpus proceeding and one designated for a potential clemency proceeding.
§ 680.20.20 Processing of Clemency Vouchers
All attorney compensation (Form CJA 30 (Death Penalty Proceedings: Appointment of and Authority to Pay Court Appointed Counsel)) and investigative, expert, or other services vouchers (Form CJA 31 (Death Penalty Proceedings: Ex Parte Request for Authorization and Voucher for Expert and Other Services) pertaining to the clemency representation should be submitted to the district court, regardless of whether the habeas corpus case is on appeal at the time.
§ 680.30 Budgeting Clemency Work

(a) Consistent with § 640, courts are encouraged to require counsel appointed in 28 U.S.C. § 2254 proceedings to submit a proposed initial clemency budget for court approval that will be subject to modification in light of facts and developments that emerge as the case proceeds.
(b) The district court, in consultation with counsel, should determine when the clemency budget should be submitted — early in the habeas corpus proceedings, or at the beginning of the clemency work. In order to allow sufficient time for clemency preparation, budgeting should occur well in advance of final resolution of the case in the courts.

Government Failed to Prove Prior Conviction was ACCA Eligible

U.S. v. Bowler, 2011 WL 1519383 (4/22/11) (Okl.) (unpub'd) - A nice convoluted, categorical-approach Armed Career Criminal Act victory. The documents did not prove the defendant had committed a delinquent act [at the age of 12!] "involving the use or carrying of a firearm, knife or destructive device." The defendant had been charged with shooting the victim, but his stipulation indicated an amended petition had been filed pursuant to which he pleaded guilty to assault and battery with a dangerous weapon. Under state law, the dangerous weapon could have been metal "knucks," which would not qualify the defendant for the ACCA. The amended petition was not in evidence. The government didn't meet its burden to prove a prerequisite violent felony conviction. Nor did the defendant's other delinquent act qualify. He was convicted of "manufacturing," not using or carrying, an incendiary device. Manufacturing did not necessarily "involve" transporting. the device.

Depositing Fraudulently Obtained Uncertified Checks Is Money Laundering

U.S. v. Huff, 2011 WL 1467564 (4/19/11) (Utah) (Published) - The deposit of uncertified checks obtained through wire fraud constitutes money laundering. Possession of the check is possession of "any property" even before it's cashed or deposited. It doesn't matter whether the check clears or the defendant accesses the money or the check has a guarantee of payment.

Difficulty of Challenging Reliability of Dog-Sniff-Based Searches Now a Lot Harder

U.S. v. Ludwig, 2011 WL 1533520 (4/22/11) (Wyo.) (Published) - The 10th seems to have dealt a devastating blow to challenges to the reliability of drug-sniffing dogs to establish probable cause. The 10th says a defendant cannot challenge the reliability of individual dogs if the dog has been certified. In that case, the defendant can only challenge the reliability of the credentialing organization. This is so because "canine professionals are better equipped than judges to say whether an individual dog is up to snuff." Plus using the statistics of the dog's success suggests probable cause may be reduced to a "one-size-fits-all mathematical equation" and that would be awful. Precedent and common sense are more important than percentages. And, besides, the dog's 58% success rate is enough for probable cause. The d. ct. did not clearly err in agreeing with the government expert who said the officer did not cue the dog to alert.

The 10th also holds an officer's credible visual estimation of speed establishes reasonable suspicion for a traffic stop. And the officer had reasonable suspicion to detain the defendant beyond what was needed to give a citation because: (1) the defendant didn't pull over right away; (2) there was an overpowering smell of cologne; (3) the car was registered to a third party [this factor is relevant even where the driver can supply details about the owner]; (4) the defendant's story was suspect [he drove from N.J. to San Jose, California, "the hub of the computer industry," to fix a computer server problem] [travel plans do not have to be contradictory to be relevant; it's enough that they are "bizarre"]; and (5) the defendant was supposedly exceptionally nervous. The defendant was not entitled to dismissal under Trombetta for the deletion of a video of the stop. While the video might have provided missing dialogue, comparable evidence existed: 2 other videos of the stop and the testimony of the honest eyewitness police officers. And it was not clearly erroneous to refuse to award a minor role adjustment on the grounds that the defendant was unlike the average courier, because he knew he was transporting $125,000 in cash to buy drugs.

New Book on Race, Crime and Punishment Available for Free Download

According to a press release from the Sentencing Project, a new book entitled Race, Crime, and Punishment: Breaking the Connection in America has been published by the Aspen Institute with support from the Open Society Foundation. The book "explores and critiques the intersection of race and the criminal justice system," according to the release. It is edited by Keith Lawrence and includes contributions by Marc Mauer, Michelle Alexander, Eric Cadora, Blake Emerson, Ian Haney Lopez, Alan Mobley, Alice O’Connor, Jonathan Simon and Phil Thompson. It can be downloaded here.

New Criminal Pattern Jury Instructions on Website

The 2011 Tenth Circuit Pattern Jury Instructions are now available on the Tenth Circuit's website for downloading here.

Two published defense victories on jurisdiction in Indian Country and venue

U.S. v. Langford, 2011 WL 1368548 (4/11/11) (Okl.) (Published) - 18 U.S.C. § 1152 and the Assimilative Crimes Act do not give the federal courts jurisdiction over a non-Indian defendant charged with committing a crime in Indian country that has no human victims, in this case cockfighting. Oklahoma did have jurisdiction over the offense under its law . The 10th rejected the idea that the defendant's status as a non-Indian was a mere "technicality." It was an essential element under § 1152. There was no discussion as to whether the chickens were members of an Indian tribe.

U.S. v. Smith, 2011 WL 1367032 (4/12/11) (Okl.) (Published) - There was no venue in Oklahoma under 18 U.S.C. § 1001(a)(2) for false statements made in Minnesota about events that occurred in Oklahoma. The 10th refused to adopt a "substantial contacts" rule. In this case, the statements began, continued and ended during the interview in Minnesota, since the interview was not recorded, transcribed or otherwise preserved for use in Oklahoma. And there was insufficient evidence that the defendant violated 18 U.S.C. § 664, an embezzling statute, because the government did not prove he deprived anyone of property. The Board of a non-profit voted in its discretion to contribute to an employee profit-sharing plan. Without telling the board, the defendant, who was executive director, voided the contribution check because he was not sure there would be funding for it. There was no contractual right in the plan to collect the contributions so there was no property to be deprived of.

U.S. v. Ortiz, 2011 WL 1388789 (4/13/11) (N.M.) (unpub'd) - This amending of a prior decision provides an interesting insight into how the US Attorney's Office works, or doesn't. In the original decision, the 10th Circuit said an AUSA's improper questioning constituted prosecutorial misconduct. The government won anyway because it was found not to be prejudicial enough to warrant a new trial. Nonetheless, the government moved to amend the decision because a court finding of misconduct triggers a whole investigation by Eric Holder's folks in D.C. But if the court just says the prosecutor did something improper, that does not trigger an investigation. The 10th obligingly changed its wording to say: "the prosecutor asked an improper question that Ortiz alleges rose to the level of prosecutorial misconduct." Problem solved.

U.S. v. McConnell, 2011 WL 1388692 (4/13/11) (Okl.) (unpub'd) - The 10th remands so that the d. ct. can reconsider the defendant's claim that his appellate counsel was ineffective for failing to raise the issue of inadequate notice of a ground for upward departure [not variance]---a post-conviction firearm sale in a firearms case. The 10th noted the defendant alleged sufficient prejudice from the lack of notice because he could have impeached the government witnesses and presented an exculpatory witness and the court increased his sentence 8 months due to the new information.

U.S. v. Eskridge, 2011 WL 1388877 (Kan.) (4/13/11) (unpub'd) - Writing "2 short paragraphs" asserting an evidence-insufficiency claim constituted a waiver of the argument because it didn't adequately develop the issue. For guideline "crime of violence" purposes, under Shepard, the defendant does not have to be the one that utters the word "dwelling" at a plea hearing to find he had been convicted of burglary of a dwelling. It was enough that the judge conducting the plea hearing said the case involved a "residence" and the defendant did not disagree with that characterization.

Sanchez v. Holder, 2011WL 1446515 (4/15/11) (unpub'd) - Any offense with an intent to defraud is a crime of moral turpitude. It doesn't matter whether the fraud obtained something of value. In any event, the 10th rejected the notion that lying to get a job led to getting nothing of value because it was an even exchange of money for labor. Is that a Marxist theory or Adam Smith? Getting a job does have value, the 10th says. We all can agree with that, right?

Fournerat v. Wisconsin Law Review, 2011 WL 1366900 (4/12/11) (Okl.) (unpub'd) - The 10th throws out a lawsuit by a criminal defense lawyer against a law review. The lawyer agreed with the review's assessment that his performance in a capital trial was "amazingly inept," but he disagreed that his ineptness was due to greed or unscrupulous conduct.

U.S. v. Sturm, 2011 WL 1227823 (4/4/11) (Colo.) & U.S. v. Dayton, 2011 WL 1227837 (4/4/11) (Okl.) - The 10th has decided to rehear en banc the issue whether the interstate jurisdictional element of the child porn statutes require proof a particular image traveled interstate [a difficult standard for the government] or the original or other iteration of that image did at some time do so [a much easier standard]. In the Dayton case, Judges Holmes and Holloway ruled that the former applied, stressing it was bound by U.S. v. Shaefer, 501 F.3d 1197 (10th Cir. 2007), and reversed a child porn conviction. In dissent, Judge Briscoe called for rehearing en banc. The majority called Judge Briscoe's dissent "alarmist," saying Congress broadened the jurisdictional language in 2008, so that Shaefer will have little effect in the future.

In Sturm, the 10th dealt with some other issues in an unpublished judgment. It held an intent to distribute was not necessary for a child porn receipt conviction. The jury instructions did not suggest after-acquired knowledge of the content of the materials was enough to convict. The statute requires the image, not the digital file, travels in interstate commerce. To use a crime under Rule 414 as a prior sexual molestation offense, the prior child need only be under 18, not, 14, years of age. It was okay for the d. ct. to admit a prior state child porn conviction, although the d. ct. mistakenly thought one of the factors to consider was whether the prior conviction was disputed, when the factor should be whether the defendant's propensity is disputed. For double-jeopardy purposes it didn't matter that the received materials were on a single hard drive, since they were received on different dates.

U.S. v. James, 2011 WL 1226943 (4/4/11) (Okl.) (unpub'd) - The 10th rejects the defendant's challenge to the exclusion from the speedy-trial calculation of the delay resulting from his co-defendant's mental evaluation. The delay was not unreasonable because, although the defendant was incarcerated during the delay, he did not seek release or object to the continuance or move to sever, a joint trial is preferred and the violation of the 45-day limit on the time a defendant should be committed to an examination facility under 18 U.S.C. § 4247(b) has no remedy, [isn't that comforting?].

U.S. v. Harris, 2011 WL 1289156 (4/6/11) (Colo.) (unpub'd) - The 10th affirms upward variance based in part on the defendant's "arrogance and abusive demeanor."

Stemple v. Workman, 2011 WL 1226902 (4/4/11) (Okl.) (unpub'd) - The "mere fact that the petitioner rode to the police station with police officers and was told they 'needed' to talk to him" does not lead to the conclusion the petitioner was in custody for Miranda purposes because of the clear statements at the station that the petitioner was not under arrest and the "non-coercive environment" in which the petitioner was questioned.

U.S. v. Gonzalez-Guytan, 2011 WL 1289152 (4/6/11) (Okl.) (unpub'd) - After finding the officer had reasonable suspicion to believe the defendant failed to immediately yield and pull over after another officer activated his emergency lights to chase after someone else, the 10th suggested that the subsequent traffic stop might not have been ok if the officer activating the emergency lights did not have reasonable suspicion to stop the other person.

Patterson v. Jones, 2011 WL 1314035 (4/7/11) (Okl.) (unpub'd) - The pro se petitioner waived all his issues because all he did on appeal was adopt his arguments below.

Refusing to Testify Against Co-defendant Warrants Obstruction Enhancement

US v. Mollner, No. 09-4158, 2011 WL 1663596 (10th Cir. May 4, 2011) (published): Court affirms imposition of 2-level obstruction of justice enhancement on defendant convicted of bank robbery. Defendant pled guilty to bank robbery. Before his sentencing, the government filed a motion to compel the defendant's testimony at his co-defendant's trial and to grant him immunity for his testimony. Mr. Mollner stood firm and refused to testify. At sentencing, the trial enhanced his sentence for that refusal. The Court held that the present version of USSG 3C1.1 applies not only to the defendant's obstructive conduct regarding his own conviction but also to obstructive conduct involving closely related cases, such as codefendants' cases.

US v. Yelloweagle, -- F.3d --, 2011 WL 1632095 (10th Cir. 5/2/11)(CO) - 18 § 2250(a)(2)(A), the criminal statute enforcing compliance with the sex offender registration requirement imposed under 42 U.S.C. § 16913, is rationally related to the registration scheme and constitutes a valid exercise of congressional authority under the Necessary and Proper Clause. Mr. Yelloweagle's conviction for failing to register is consequently affirmed.

Selsor v. Workman, -- F.3d --, 2011 WL 1632101 (10th Cir. 5/2/11)(OK) - affirmance of death penalty imposed after retrial. After the Oklahoma courts modified his death sentence to life imprisonment, Selsor successfully attacked his conviction, resulting in a retrial in which he was resentenced to death. COA holds Selsor had fair warning that his murder conviction could result in the death penalty and the state court's rejection of ex post facto and due process challenges to the reimposition of the death penalty was not contrary to or an unreasonable application of federal law. Selsor was also not entitled to habeas relief based on double jeopardy. The initial imposition of the death penalty was based on a murder statute that mandated the death penalty upon conviction of first degree murder and Selsor's death sentence was modified to life imprisonment as a result of a ruling that that statute was unconstitutional. There was no determination that the prosecution failed to establish the death penalty was warranted under the circumstances. Error in instructing the jury on the elements of the amended first degree murder statute rather than the statute as it was at the time of Selsor's crime was harmless and had no substantial and injurious effect on either the guilt or penalty findings. Selsor was not entitled to relief based on equal protection because, in light of the invalidation of his convictions and sentence and grant of a new trial, he was not similarly situated to those whose sentences were modified when the OK death penalty statute was ruled unconstitutional. The COA rejects Selsor's vindictive prosecution claim on the ground the state court reasonably concluded he showed no actual vindictiveness. The prosecution's sentencing arguments did not amount to prosecutorial misconduct. And while it was improper to permit victims' family members to comment on the appropriate sentence, that did not cause actual prejudice.