Thursday, June 30, 2011

Supreme Court:

Bullcoming v. New Mexico, 2011 WL 2472799 (6/23/11) - By a 5-4 vote, with the majority opinion written by Justice Ginsburg and with a critical concurrence by Justice Sotomayor, the Court held the admission of a lab analyst's certification of the defendant's blood alcohol level, through the testimony of the analyst's supervisor, violated the Confrontation Clause. The certification was testimonial, and thus subject to Crawford's requirements of unavailability and cross-examination, because it was created for evidentiary purposes, not, as New Mexico claimed, pursuant to a non-adversarial public duty. That the statement was unsworn does not make it any less testimonial. It was just like the lab report in Melendez-Diaz. The certification is not excepted from Crawford's rule. It reported more than a machine-generated number. It also certified, among other things, that the analyst adhered to protocol and performed the test on the defendant's sample. And, in any event, the analyst's reporting of a number he saw is no different than a witness testifying the traffic light was red, for example. And clearly the Confrontation Clause applies to that. The obvious reliability of a statement would not excuse application of the Clause. The surrogate testimony of the supervisor could not communicate what the analyst observed and cross of the supervisor could not expose any incompetence or dishonesty of the analyst, e.g. as to why the analyst was on unpaid leave. Nor did the state assert the supervisor had any independent opinion about the defendant's BAC. The Clause cannot be dispensed with just because on the whole the interests of the Clause may have been served and the trial seemed to be fair overall.
Justice GInsburg, joined only by Justice Scalia, went on to explain that the decision would not wreak havoc. They noted labs could preserve samples, which a new analyst could retest. They rejected the notion the state could require the defendant to initiate retesting. They do say states could require the defendant to give notice that s/he demands the state call the report's author. They noted the paucity of cases going to trial and the likelihood of stipulations because live expert testimony might hurt the defendant's case.
Justice Sotomayor's dissent indicates this case may be as far as the S. Ct. is willing to go in applying Crawford. She stresses the limited reach of the decision. She opined that reliability, hearsay rules and formality are relevant in determining the confrontation issue. She explained what this case was not about. (1) The state did not suggest an alternative purpose for the certification, such as where medical reports are created for treatment purposes. (2) The witness did not have even a limited connection to the scientific test at issue, such as observing some of the analyst's conduct of the test. (3) This was not a situation where an expert is asked for his expert opinion about an unadmitted report. (4) The state did not just present machine-generated results. Thus, it may well be that Justice Sotomayor will side with the prosecution under slightly different circumstances.
In dissent, Justice Kennedy, joined by Justices Roberts, Breyer and Alito, criticizes Crawford, extolls the reliability of scientific evidence. predicts havoc will reign and suggests the solution to bad lab work is proper lab procedures, not confrontation at trial.

U.S. v. Juvenile Male, 2011 WL 2518925 (6/27/11) (per curiam) - The case presented the question whether SORNA violates the Ex Post Facto Clause when applied to juveniles adjudicated as delinquent before SORNA's enactment. But in a 5-3 decision (Justice Kagan recused) the Court found the case was moot when the 9th Circuit decided it. The defendant challenged the imposition of sex offender registration, supervised-release conditions. But the order requiring him to register had expired on his 21st birthday. Pursuant to the certified question procedure, the Montana S. Ct. opined that the defendant would have to register under state law, whether or not the federal registration condition was valid. So the defendant did not meet his burden to identify an ongoing collateral consequence of the order he was challenging. That a favorable decision might serve as a useful precedent in a hypothetical lawsuit challenging Montana's registration requirement did not save this case from mootness. And the defendant's possible duty under SORNA to register is not a collateral consequence of the order he challenged, but rather independent of it. And the issue is not capable of repetition and evading review because the over-21 defendant will never again be subject to an order imposing special conditions of juvenile supervision. Justices Ginsburg, Breyer and Sotomayor would have remanded the case to the circuit court to decide the mootness issue.

Cert Grants:

U.S. v. Jones, 2011 WL 1456728 (6/27/11) - Whether the installing of a GPS tracking device and/or the prolonged use of that device violates the Fourth Amendment. The D. C. Circuit had ruled the month-long use of the device was unconstitutional.

Messerschmidt v. Millender, 2011 WL 2518829 (6/27/11) - A § 1983 case that might have implications for the good faith exception to the exclusionary rule. The questions presented concern when are officers entitled to qualified immunity with respect to executing an overbroad warrant that is not supported by probable cause and whether the "so lacking in indicia of probable cause" exception to Leon is too hard to apply and too tough on officers.

Martel v. Clair, 2011 WL 1481309 (6/27/11) - Under what circumstances is a capital § 2254 petitioner entitled to new counsel.

10th Circuit:

U.S. v. Ransom, 2011 WL 2508235 (6/24/11) (Kan.) (Published) - A case that demonstrates the importance of truthful timesheet reporting. The 10th upholds a HUD employee's convictions for wire fraud and theft of public money for falsifying his timesheets. He indicated he was working during hours he was actually playing tennis or gambling at a casino. The 10th rejected the defendant's argument that, as a salaried person, his hours had no direct relation to his paycheck. His time records did affect his leave balances and leave has a monetary value. Contrary to the defendant's claims, he had to take leave for absences for partial days. The statute required him to work particular hours. So it didn't matter whether he worked lots of hours outside of those time periods. He had the necessary intent because there was evidence he had notice that his paychecks were tied to his time records, (including his disciplining of employees for abusing timekeeping procedures and an angry confrontation with an assistant when she encouraged him to take leave for time spent playing tennis) and that he had to be in the office during core working hours. Considering the instructions as a whole, the instruction that federal employees must either work the assigned hours or account for absent time with approved leave did not lead the jury to believe he could be convicted just because he didn't take leave during working hours.

U.S. v. Martinez-Haro, 2011 WL 2465843 (6/22/11) (Utah) (Published) - The 10th had jurisdiction to review an order requiring a second competency examination. The d. ct. had authority to order more than one examination. 18 U.S.C. § 4247(b) provides for more than one examiner and does not restrict the court from ordering multiple exams and multiple hearings. The 10th would be concerned if the additional exam was ordered to allow the government to shop for a mental health expert who would find the defendant competent. But here the initial examiner, while finding the defendant incompetent, suggested the defendant be examined by an expert who spoke Spanish, the defendant's native language.

Waugh v. Holder, 2011 WL 2464779 (6/22/11) (Published) - Padilla does not impose on the government the burden of proving a conviction is valid. It is not appropriate for the IJ or the BIA to determine whether a conviction is invalid under Padilla or any other constitutional theory. Collateral attacks on convictions belong in the jurisdiction where the conviction was obtained. But the government need not wait for collateral proceedings in that jurisdiction to be finished before removing the alien. An alien is removable as soon as the trial court enters a formal judgment of guilt.

Toevs v. Reid, 2011 WL 2437782 (6/20/11) (Colo.) (Published) - Indefinite placement in an administrative segregation level system (in this case for 7 years) triggered due process protections. The inmate did not receive meaningful periodic review of his progression through levels 1-3 because the prison never gave him reasons why he was recommended for or denied progression in order to provide a guide for his future behavior. And for levels 4-6 there was no review at all in violation of due process. But the defendants were entitled to qualified immunity because the 10th had not previously defined what meaningful periodic review meant in a stratified incentive program.

U.S. v. Jordan, 2011 WL 2530926 (6/27/11) (unpub'd) - The d. ct. did not err when it imposed an obstruction-of-justice enhancement where the defendant sent letters to the prosecutor threatening to seize the prosecutor's assets and exact certain penalties, even after the d. ct. told him to stop doing it. The letters were harassing and obstructive.

U.S. v. Rubio-Ayala, 2011 WL 2489990 (6/23/11) (Kan.) (unpub'd) - A motion to enforce a plea agreement filed before the defendant files an opening brief is not premature. The whole point of the waiver is to save the government the trouble of full-fledged briefing.

U.S. v. Senninger, 2011 WL 2455662 (6/21/11) (Colo.) (unpub'd) - Mail fraud convictions established the defendants engaged in the overall scheme to defraud the IRS and therefore the loss calculation and restitution were not limited to the conduct related to the specific counts of conviction.

Friday, June 24, 2011

Senetncing Project Analyst Position

The Sentencing Project, in Washington, D.C. has announced that it is seeking a research analyst. Information about the Sentencing Project can be the project's website, More information about the position is available here.

Tuesday, June 21, 2011

Champ v. Zavaras, 2011 WL 2411002 (6/16/11) (unpub'd) - The 10th interprets the Supreme Court recent Cullen decision to require it to ignore any evidence submitted to the federal district court in a § 2254 case.

Defendant Successfully Challenges Mental-Health Treatment Supervised Release Condition, Restitution

U.S. v. Majors, 2011 WL 2356466 (6/15/11) (Colo.) (unpub'd) - The defendant successfully challenges a mental-health-treatment supervised-release condition and restitution.

The 10th first holds that, whenever a defendant argues there was insufficient evidence to support an aspect of the sentence, he is making a substantive-reasonableness claim and therefore he does not have to raise the issue below to avoid plain error review.

There was insufficient evidence to support a requirement that the defendant submit to mental health treatment where the district court said it would not consider a couple of disputed mental-health-related matters and the only evidence left was unsupported speculation the defendant might have suffered a head injury 10 years ago and he admitted to situational depression several years ago. And there was no evidence to support the restitution amount, only the prosecutor's unsupported assertion. The 10th left it up to the district court to decide whether to allow the government to present more evidence to support the condition and the restitution.

Safety-valve Disclosures Should be Before Sentencing Hearing

U.S. v. Galvon-Manzo, 2011 WL 2315194 (6/14/11) (Utah) (Published) - An important and unhelpful safety-valve decision. Generally speaking, any and all disclosures for safety-valve purposes are timely only if they occur prior to the sentencing hearing. The disclosure is supposed to demonstrate the defendant is fully cooperating and to benefit the government pre-hearing so that it can investigate the defendant's truthfulness.

The district court can exercise its discretion and allow the defendant to make disclosures during the hearing, but, in this case, the district court did not abuse its discretion when it refused to allow the defendant to essentially debrief during the hearing on the grounds that the defendant lied too much in his post-arrest statement and one debriefing. It was okay for the district court to decide no further information from the defendant would be useful or informative because it would be unreliable.

With respect to the co-defendant, the district court did not abuse its discretion when it refused to hold an evidentiary hearing to allow the defendant to show his pre-sentencing disclosures were truthful and complete. The district court could assess the credibility of the defendant's information without hearing testimony.

Tuesday, June 14, 2011

Convictions Based on Insurance Theft Affirmed

US v. Hillman, -- F.3d --, 2011 WL 2306227 (10th Cir. 6/13/11) - affirmance of defendant's convictions of several crimes re: a scheme carried out with his girlfriend to steal money from inactive annuity policies held by insurance co. for which she worked. Grand jury testimony characterizing matters as untruthful and illegal did not improperly influence the grand jury or invade the grand jury's deliberative processes because the challenged testimony was factual and explained the course of the investigation. Anyhow, if there were grand jury errors, the petit jury's guilty verdict mooted them.

AUSA's interview with girlfriend re: whether reference to "grandma's" trust was a code-word for the illegal scheme was not improper and was certainly not plain error. IRS Agent's testimony that defendant lied during an interview about the source of the money he received was an accurate repetition of what Hillman admitted during the course of that same interview and did not improperly invade the province of the petit jury.

The appellate court will not reverse conviction on basis of insufficient evidence supporting a deliberate ignorance instruction where there is sufficient unchallenged evidence of actual knowledge of the illegal nature of the fraudulent scheme.

Friday, June 10, 2011

Temporary Staff Attorney Positions Opening at Tenth Circuit

According to a press release from the Tenth Circuit Court of Appeals, the Tenth Circuit will be posting a announcement for one or two temporary staff attorneys in Denver. Employment must begin by July 3 and will be for approximately 2-3 months. The primary responsibility will be updating the Deskbook and Immigration Manual. Additional information will be available at the Tenth Circuit's website,

Monday, June 06, 2011

U.S. v. Thornburgh, No. 09-5156 (5/27/11) (Okl.) (Published) - There was sufficient evidence the conspiracy to defraud carried on into the statute of limitations period where the defendant stopped communicating with one of the conspirators, but still engaged in some conduct that furthered the conspiracy, in particular "lulling" the victims. The 10th confines the holding in U.S. v. Santos, 553 U.S. 507 (2008) to its facts: "proceeds" in the money laundering statute with respect to an illegal gambling operation means "profits," but otherwise, for example in this wire fraud case, "proceeds" can be gross receipts. Any error in failing to instruct the jury properly was not plain, given how differently the circuits have applied Santos. [And, besides, Congress has now defined "proceeds" as "any property" and so overruled Santos.] Because the defendant did not identify which co-conspirator statements were inadmissible, the 10th refused to address the question. It was plain error not to instruct the jury that it had to find the defendant violated 18 U.S.C. § 1349 after its enactment on July 30, 2002. But the defendant did not show his substantial rights were affected because the defendant's activities before and after that date were pretty much the same. There was no plain error in failing to sever defendants, where the defendants pursued similar defenses. The defendant waived his right to be present at trial when his counsel asked the court to allow the defendant to absent himself for medical reasons and said he thought it best for his client that the trial continue in the defendant's absence.

U.S. v. Fishman, 2011 WL 2084207 (5/27/11) (5/27/11) (Okl.) (Published) - The 10th addressed some of the same issues the defendant's co-defendant, Mr. Thornburgh raised and the following issues. The defendant did not "in effect" testify before the grand jury pursuant to a grant of immunity. No one authorized to give immunity did so. The defendant was deeply involved in the conspiracy. It was unlikely the defendant could watch as months went by and investors failed to get the money they were promised and not be aware the scheme was fraudulent. The defendant's brief was "woefully inadequate" when it argued for a half-page that the evidence of money laundering was insufficient. And besides the evidence was sufficient. And there was also sufficient evidence there was one conspiracy, not three. There's one conspiracy as long as the conspirator's goals are not at cross purposes, even if participants come and go. The defendant's argument that the amount of loss for his guideline calculation was unreasonable was too abbreviated to warrant addressing. The defendant did not meet his burden to establish he withdrew from the conspiracy before the statute of limitations kicked in. Cooperation with authorities is not enough to show withdrawal.

Byrd v. Workman, 2011 WL 2084204 (5/27/11) (Okl.) (Published) - A denial of habeas relief primarily based on the really stringent IA and habeas standards. There was no need to apply the harmless error standard because the Strickland prejudice prong is at least as difficult a standard to meet. Counsel failed to discover that only 4 of the petitioner's 7 convictions were countable under Oklahoma's habitual offender statute. As a result, the jury who decided guilt and sentence were exposed to more convictions than they would otherwise have been. The 10th thinks it's a novel argument to say the petitioner might have received a lower sentence if the jury was exposed to less convictions. Since no S. Ct. case had indicated such an analysis was required, the petitioner was out of luck. The Okl. appellate court's mistaken assumption that the trial court ruled all the convictions were admissible for impeachment purposes did not entitle the petitioner to relief. He still had to show the state court's decision was "based on" the mistake and establish the 2 prongs of the Strickland test. He did not prove the extra number of convictions before the jury affected the jury's decision. This case was different from an unpublished 10th case where the prosecutor stressed to the jury the number of convictions.

U.S. v. Thompson, 2011 WL 2064849 (5/26/110 (Col.) (unpub'd) - An unremarkable holding that a bottom-of-the-guideline-range sentence was substantively reasonable, but a remarkable concurrence by Judge O'Brien. He wrote separately to "commend" the d. ct. for its "resolve" in imposing "condign" [i.e., deserved, I had to look it up], punishment. He footnoted Daniel Webster's quote: "I would invoke those who fill the seats of justice, and all who minister at her altar, that they execute the wholesome and necessary severity of the law." He goes on to opine that the defendant was a "confirmed grifter" who received a sentence that was perhaps less, but certainly not more, than she deserved.

U.S. v. Heath, 2011 WL 2023425 (5/25/11) (Okl.) (unpub'd) - "Access devices" under 18 U.S.C. § 1029(e)(1) includes credit card account numbers alone.

Richwine v. Romero, 2011 WL 2066552 (5/26/11) (N.M.) (unpub'd) - A habeas procedural win. The state had expressly waived exhaustion when it admitted all the petitioner's issues were exhausted. The d. ct. erred when it decided some of the issues were unexhausted without considering the state's waiver. The 10th also interestingly [to me] indicated perhaps a petitioner may exhaust in N.M. by just raising issues before the N.M. S. Ct. without raising them below.

U.S. v. Goodwin, 2011 WL 2006335 (5/24/110 (Kan.) (unpub'd) - The rule that precludes a conviction for conspiracy for just a buyer-seller relationship does not apply when the defendant purchases the drugs for resale. There was sufficient evidence the defendant participated in the conspiracy, even though he was a low-level street dealer. He was still integral to the conspiracy. There was sufficient evidence to establish venue in Kansas that either he or the person he called was in Kansas when the relevant phone conversation occurred. It was not cruel or unusual punishment to impose a life sentence for a first-time felony conviction of possession with intent to distribute 50 grams or more of cocaine.

U.S. v. Temple, 2011 WL 2006308 (5/24/11) (Kan.) (unpub'd) - It was okay to instruct the jury on the offense of aiding and abetting a conspiracy. There is such a thing. The defendant's subjective lack of knowledge that her co-conspirator possessed firearms in connection with drug trafficking was not enough to meet her burden to show the connection was "clearly improbable" under USSG § 2D1.1, comment. (n. 3).

U.S. v. McDaniel, 2011 WL2006304 (5/24/11) (Kan.) (unpub'd) - Rule 901 sets a "low bar" for admission of voice identification evidence. "Minimal familiarity" with the defendant's voice is enough for an officer to identify the voice on recordings. How much the defendant talked to the officer only went to the weight of the officer's testimony.

Wise v. Chester, 2011 WL 2023415 (5/25/11) (Kan.) (unpub'd) - BOP correctly refused to give the defendant credit for time he spent in custody after he was taken from state custody to federal custody pursuant to a writ of habeas corpus ad prosequendum because the state gave him credit against his state sentence for that time. The feds were just temporarily borrowing the defendant.

No New Trial Even Though Cooperating Codefendant was Insane; No Acceptance Where Guilty Plea Entered on Morning of Trial

Unpublished Decisions:

US v. Crabbe, No. 10-1226, 6/2/11 (CO) - Defendant and codefendant Rowan were partners in a business that supplied temporary nurses. Rowan was president and ran things; defendant was vice president. They often didn’t file their quarterly tax returns or remit withheld employee FICA taxes, and wound up getting indicted. Rowan pled guilty and testified against defendant, who was convicted on several counts. Rowan’s attorney questioned his client’s competence to be sentenced. A psychiatrist concluded that Rowan fluctuated between periods of delirium and lucidity, and could not predict whether he would be lucid on any particular day. Rowan died before sentencing. Defendant moved for a new trial based on alleged Brady violation in failing to disclose Rowan’s possible incompetence as a witness or because of newly discovered evidence, and to permit discovery from Rowan’s attorney. The motions were denied and the Tenth affirmed. (1) No Brady violation because the government was not aware of Rowan’s mental condition, and facts that might have put it on notice were not in themselves material. (2) Defendant not entitled to new trial because there was plenty of evidence supporting guilty verdicts apart from Rowan’s testimony, so outcome would likely not have changed had Rowan not testified at all.

US v. Ochoa-Olivas, No. 10-2250, 6/2/11 (NM) - Illegal reentry defendant changed his mind and pled guilty the morning his trial was to begin. The district court refused to award acceptance of responsibility reduction and the Tenth affirmed. The district court did not abuse its discretion, although it could have granted reduction, so the below guidelines sentence was both procedurally and substantively reasonable.

Important Decision Regarding Reentry Instructions

US v. Sierra-Ledesma, Nos. 10-3066 and 3067, 6/2/11 (KS) - Mens rea for an 8 USC § 1326(a) illegal reentry charge based on being found in the US, and how to instruct a jury on it, were the main issues here. Conviction affirmed.

Held: (1) the district court erred by not instructing the jury that, in order to convict, it had to find beyond a reasonable doubt that the defendant “reentered the United States with an intent to do so” but the error was harmless beyond a reasonable doubt because defendant admitted to entering the US by crossing the border in Arizona after having been deported. The district court properly refused to use the 10th’s Pattern Jury Instruction, which has as one element that the defendant was “knowingly found” in the US because the phrase makes no sense. The court still had to instruct on mens rea.

(2) Defendant’s admission that he was born in Mexico was sufficient to prove that he was not a citizen or national of the US.

3) Any error in admitting evidence of defendant’s prior illegal reentry conviction was harmless.

4) any misconduct in prosecutor’s rebuttal closing that the defense argument about the government not having proven that defendant was not a US national was a red herring was harmless.

Thursday, June 02, 2011

What has caused the reduction in crime rates? Two articles.

Violent crime is apparently at a 40-year low. Colleagues forwarded some links to articles about the reduced crime "Could Lead Abatement Reduce Social Problems," by Ed Drayton, starts off: "The amount of violent crime in the United States dropped significantly last year, to the lowest rates in 40 years. Kevin Drum argues that it may be due to successful lead abatement efforts." As pointed out by my colleague, this may be a basis for mitigation arguments if your client was exposed to lead as a child.

A Wall Street Journal article, "Hard Times, Fewer Crimes," also mentions lead abatement as a potential factor in the decrease in crime, though it also looks at other possible causes, including economic changes, longer imprisonment, and cultural changes.