A few 10th Cir. cases and one cert grant. First, the 10th:
U.S. v. Rushin, 2011 WL 2547563 (6/28/11) (Kan.) (Publshed) - The 10th goes out of its way to decide the first prong of the Strickland test when it could have easily disposed of the case on the prejudice prong, as the concurring Judge Holmes points out. The 10th holds that counsel does not unreasonably perform when s/he fails to move to dismiss for an obvious Speedy Trial Act violation and the remedy will only be dismissal without prejudice, unless the defendant can show a particular benefit from such a dismissal. The 10th declares that a d. ct. should not dismiss serious charges with prejudice absent a showing of appreciable prejudice to the defendant or intentional dilatory conduct or pattern of neglect by the government. Here no such showing could be made. The d. ct. would have abused its discretion if it dismissed the robbery charges in this case with prejudice. The 10th rejected the defendant's claim that he had nothing to lose because he ultimately was convicted after a jury trial. Looking from the pretrial perspective, a motion to dismiss could have interrupted plea negotiations or pissed off the d. ct. The defendant did not show the motion would have improved the strained relationship between counsel and the defendant and then resulted in a beneficial plea deal. The 10th acknowledged something would be gained by a dismissal without prejudice. But, given the strong presumption that counsel elected not to file a motion for sound tactical reasons, the 10th was "loathe to conclude the 6th Amendment required counsel to obtain the indeterminate benefit of a motion and place on the government the burden to reindict." The 10th went on to hold that the defendant did not show prejudice either because after the dismissal the government would have reindicted and the defendant would have been convicted again. The prejudice inquiry is not limited to looking at only what would happen to one particular indictment. Judge Holmes thought that counsel may have performed unreasonably in failing to move to dismiss. He saw no apparent benefit to failing to make the motion and a possible benefit in the government not reprosecuting. He thought it made more sense for the 10th to just decide the obvious prejudice issue.
U.S. v. Maestas, 2011 WL 2547564 (6/28/11) (N.M.) (Published) - This case involves an interpretation of USSG § 2B1.1(b)(13). That provision provides for an enhancement for a theft or fraud offense that involves "the conscious or reckless risk of death or serious bodily injury." The 10th acknowledges it could have just ruled that the d. ct. [Judge Hansen] did not clearly err in finding the defendant knew that taking gold loaded with plutonium from Los Alamos Labs created a serious health risk. Instead, the 10th decides to clarify what mens rea § 2B1.1(b)(13) requires. Taking the bad side of a circuit split, the 10th holds that provision does not require the government to prove the defendant was subjectively aware of the risk created by his or her acts. The government need only prove the defendant was reckless as to the existence of the risk, i.e., the risk would have been obvious to a reasonable person. "Reckless" in § 2B1.1(b)(13) does not mean what it means in the involuntary manslaughter guideline. If the defendant had to be aware of the risk then the word "conscious" in the provision would be redundant. And besides we don't want defendants to escape the consequences of committing a dangerous theft by "claiming" ignorance. The d. ct. did not clearly err in holding the gold posed a health risk. The government showed the gold would be extremely harmful if it entered a person's body. There was a risk the gold would be melted down, which might cause the plutonium to come to the surface or be aerosolized. The government didn't have to prove that risk was highly likely to occur.
U.S. v. Balbin-Mesa, 2011 WL 2557655 (6/29/11) (N.M.) (Published) - The 10th upholds as substantively reasonable a 28-month reentry sentence, even though the defendant's only conviction [for cocaine trafficking] was 21 years old . The guideline range was 33-41 months. The 10th holds that a below-guideline-range sentence is presumptively reasonable, just like a within-range sentence is. The 10th spent some time figuring out whether the defendant was making a procedural or substantive reasonableness argument. It decided it was a substantive argument because the defendant argued the sentence was unreasonable based on "all" of the circumstances The most interesting part of this case is the fact that the 10th had previously denied without prejudice a government motion to enforce the appeal waiver [an almost unheard-of event]. The defendant had pleaded guilty without a plea agreement. At sentencing, the government offered to agree to a one-level variance if the defendant waived his right to appeal. Defense counsel agreed. The d. ct. [Judge Black] did not advise or question the defendant. A week later, counsel filed an appeal waiver ostensibly signed by the defendant. The defendant asserted his counsel never advised him about the waiver, he did not authorize counsel to waive and there was no evidence it was his signature on the waiver.
Rieck v. Jensen, 2011 WL 2573363 (6/30/11) (Utah) (Published) - The officer did not violate the Fourth Amendment when he entered property by opening a gate with a "No Trespassing" sign against the protests of the owner of the property. The officer entered an "open field" unprotected by the 4th. The gate was several hundred yards from the owner's home and the area invaded was abutting, and clearly visible from, a public highway. It didn't matter that the owner took steps to protect his privacy.
Vasiliu v. Holder, 2011 WL 2193985 (6/7/11) (Published) - The 10th grants the government's motion to publish this previously reported case which holds that an alien cannot collaterally challenge a prior conviction in immigration proceedings.
U.S. v. Broemmel, 2011 WL 2600409 (7/1/11) (Colo.) (unpub'd) - This case involves the supervised release revocation of an unrepresented defendant. At the revocation hearing, the defendant explained he had not been able to get a hold of his lawyer to whom he had given a retainer. The d. ct. sympathetically responded: "we're going ahead." The defendant had a constitutional right to counsel at the hearing only if he made a colorable claim that he did not violate a condition or that there were "substantial," "complex" mitigating factors. The defendant, whom the 10th describes as an "erstwhile attorney," did not show he was unable to speak effectively for himself. The explanation he gave for violating was not difficult to develop or present. Any violation of the counsel requirements of Fed. R. Crim. P. 32.1(b)(2)(D) or 18 U.S.C. § 3006A(a)(1)(E) did not affect the defendant's substantial rights under plain error review. The defendant's supervised release period had not expired because he had not shown [without the help of counsel] that the work release program he participated in while serving a state sentence was so much like parole that it should not toll the running of his supervised release period like incarceration would. Nor did it matter that the U.S. probation office treated him as though he were on supervised release, [imposing reporting requirements, etc.] while he was imprisoned. Plain error reversal was not warranted where the defendant did not receive the violation report until a few minutes before the hearing and he was given notice that the hearing was an initial appearance, not that the court would make a final disposition at the hearing. As grounds for that conclusion, the 10th pointed to the fact that the unrepresented defendant did not cross the probation officer, present any evidence, or request a continuance or a Rule 32.1 hearing.
Cert grant:
Williams v. Illinois, 2011 WL 2535081 (6/28/11) - The Court didn't waste any time taking a case to test the limits of Bullcoming. In this case, an expert, who had nothing to do with the testing of the evidence, gave an opinion based on a DNA lab report, but the report was not admitted for the truth of the matter asserted, but only to explain the expert's opinion about the results. This is one of the situations that Justice Sotomayor stressed in her Bullcoming concurrence was not presented in Bullcoming.
U.S. v. Rushin, 2011 WL 2547563 (6/28/11) (Kan.) (Publshed) - The 10th goes out of its way to decide the first prong of the Strickland test when it could have easily disposed of the case on the prejudice prong, as the concurring Judge Holmes points out. The 10th holds that counsel does not unreasonably perform when s/he fails to move to dismiss for an obvious Speedy Trial Act violation and the remedy will only be dismissal without prejudice, unless the defendant can show a particular benefit from such a dismissal. The 10th declares that a d. ct. should not dismiss serious charges with prejudice absent a showing of appreciable prejudice to the defendant or intentional dilatory conduct or pattern of neglect by the government. Here no such showing could be made. The d. ct. would have abused its discretion if it dismissed the robbery charges in this case with prejudice. The 10th rejected the defendant's claim that he had nothing to lose because he ultimately was convicted after a jury trial. Looking from the pretrial perspective, a motion to dismiss could have interrupted plea negotiations or pissed off the d. ct. The defendant did not show the motion would have improved the strained relationship between counsel and the defendant and then resulted in a beneficial plea deal. The 10th acknowledged something would be gained by a dismissal without prejudice. But, given the strong presumption that counsel elected not to file a motion for sound tactical reasons, the 10th was "loathe to conclude the 6th Amendment required counsel to obtain the indeterminate benefit of a motion and place on the government the burden to reindict." The 10th went on to hold that the defendant did not show prejudice either because after the dismissal the government would have reindicted and the defendant would have been convicted again. The prejudice inquiry is not limited to looking at only what would happen to one particular indictment. Judge Holmes thought that counsel may have performed unreasonably in failing to move to dismiss. He saw no apparent benefit to failing to make the motion and a possible benefit in the government not reprosecuting. He thought it made more sense for the 10th to just decide the obvious prejudice issue.
U.S. v. Maestas, 2011 WL 2547564 (6/28/11) (N.M.) (Published) - This case involves an interpretation of USSG § 2B1.1(b)(13). That provision provides for an enhancement for a theft or fraud offense that involves "the conscious or reckless risk of death or serious bodily injury." The 10th acknowledges it could have just ruled that the d. ct. [Judge Hansen] did not clearly err in finding the defendant knew that taking gold loaded with plutonium from Los Alamos Labs created a serious health risk. Instead, the 10th decides to clarify what mens rea § 2B1.1(b)(13) requires. Taking the bad side of a circuit split, the 10th holds that provision does not require the government to prove the defendant was subjectively aware of the risk created by his or her acts. The government need only prove the defendant was reckless as to the existence of the risk, i.e., the risk would have been obvious to a reasonable person. "Reckless" in § 2B1.1(b)(13) does not mean what it means in the involuntary manslaughter guideline. If the defendant had to be aware of the risk then the word "conscious" in the provision would be redundant. And besides we don't want defendants to escape the consequences of committing a dangerous theft by "claiming" ignorance. The d. ct. did not clearly err in holding the gold posed a health risk. The government showed the gold would be extremely harmful if it entered a person's body. There was a risk the gold would be melted down, which might cause the plutonium to come to the surface or be aerosolized. The government didn't have to prove that risk was highly likely to occur.
U.S. v. Balbin-Mesa, 2011 WL 2557655 (6/29/11) (N.M.) (Published) - The 10th upholds as substantively reasonable a 28-month reentry sentence, even though the defendant's only conviction [for cocaine trafficking] was 21 years old . The guideline range was 33-41 months. The 10th holds that a below-guideline-range sentence is presumptively reasonable, just like a within-range sentence is. The 10th spent some time figuring out whether the defendant was making a procedural or substantive reasonableness argument. It decided it was a substantive argument because the defendant argued the sentence was unreasonable based on "all" of the circumstances The most interesting part of this case is the fact that the 10th had previously denied without prejudice a government motion to enforce the appeal waiver [an almost unheard-of event]. The defendant had pleaded guilty without a plea agreement. At sentencing, the government offered to agree to a one-level variance if the defendant waived his right to appeal. Defense counsel agreed. The d. ct. [Judge Black] did not advise or question the defendant. A week later, counsel filed an appeal waiver ostensibly signed by the defendant. The defendant asserted his counsel never advised him about the waiver, he did not authorize counsel to waive and there was no evidence it was his signature on the waiver.
Rieck v. Jensen, 2011 WL 2573363 (6/30/11) (Utah) (Published) - The officer did not violate the Fourth Amendment when he entered property by opening a gate with a "No Trespassing" sign against the protests of the owner of the property. The officer entered an "open field" unprotected by the 4th. The gate was several hundred yards from the owner's home and the area invaded was abutting, and clearly visible from, a public highway. It didn't matter that the owner took steps to protect his privacy.
Vasiliu v. Holder, 2011 WL 2193985 (6/7/11) (Published) - The 10th grants the government's motion to publish this previously reported case which holds that an alien cannot collaterally challenge a prior conviction in immigration proceedings.
U.S. v. Broemmel, 2011 WL 2600409 (7/1/11) (Colo.) (unpub'd) - This case involves the supervised release revocation of an unrepresented defendant. At the revocation hearing, the defendant explained he had not been able to get a hold of his lawyer to whom he had given a retainer. The d. ct. sympathetically responded: "we're going ahead." The defendant had a constitutional right to counsel at the hearing only if he made a colorable claim that he did not violate a condition or that there were "substantial," "complex" mitigating factors. The defendant, whom the 10th describes as an "erstwhile attorney," did not show he was unable to speak effectively for himself. The explanation he gave for violating was not difficult to develop or present. Any violation of the counsel requirements of Fed. R. Crim. P. 32.1(b)(2)(D) or 18 U.S.C. § 3006A(a)(1)(E) did not affect the defendant's substantial rights under plain error review. The defendant's supervised release period had not expired because he had not shown [without the help of counsel] that the work release program he participated in while serving a state sentence was so much like parole that it should not toll the running of his supervised release period like incarceration would. Nor did it matter that the U.S. probation office treated him as though he were on supervised release, [imposing reporting requirements, etc.] while he was imprisoned. Plain error reversal was not warranted where the defendant did not receive the violation report until a few minutes before the hearing and he was given notice that the hearing was an initial appearance, not that the court would make a final disposition at the hearing. As grounds for that conclusion, the 10th pointed to the fact that the unrepresented defendant did not cross the probation officer, present any evidence, or request a continuance or a Rule 32.1 hearing.
Cert grant:
Williams v. Illinois, 2011 WL 2535081 (6/28/11) - The Court didn't waste any time taking a case to test the limits of Bullcoming. In this case, an expert, who had nothing to do with the testing of the evidence, gave an opinion based on a DNA lab report, but the report was not admitted for the truth of the matter asserted, but only to explain the expert's opinion about the results. This is one of the situations that Justice Sotomayor stressed in her Bullcoming concurrence was not presented in Bullcoming.
posted by Anonymous at 9:09 AM
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