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In Sturm, the 10th dealt with some other issues in an unpublished judgment.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.