Several Tenth Circuit Cases
U.S. v. Prince, 2011 WL 3373788 (8/5/11) (Kan.) (Published) - Some creative lawyering bites the dust. It is not a violation of equal protection under Batson or the right to have a jury selected from a fair cross-section of the community for the government to exclude by peremptory challenge every person who favored legalization of marijuana in a marijuana manufacturing case. Political or ideological beliefs are different from immutable characteristics like race, ethnicity or gender. Death penalty cases involving jurors' beliefs only apply to the capital context. The fair-cross-section right only applies to venires, not peremptory strikes, and only to distinctive groups, not groups with only shared beliefs. A defendant charged with making a false statement on a firearm application under § 924(a)(1)(A) does not have to know the application is to be kept in the records of a licensed person. The 10th distinguished Flores-Figueroa, in which the S. Ct. said the word "knowingly" applied to all the parts of the sentence, on the grounds that the records part of the sentence in § 924(a)(10(A) was only a "jurisdictional hook." It does not bear on the nefariousness of the conduct. Refraining from imposing a knowledge requirement will not create a danger of criminalizing otherwise innocent conduct. Knowingly giving a false address when filling out ATF forms violates § 924(a)(1)(A). There was sufficient evidence from neighbors, documents and defendant's statements that the defendant lived at a different address than the one he provided that was on his driver's license,where he apparently never lived. There was also sufficient evidence that the defendant was personally involved in marijuana growing in the basement of his home. There was a smell and evidence of the marijuana enterprise strewn throughout the house and the jury could compare his handwriting to handwriting on books detailing the operation. The 10th rejected the argument that it would have been stupid for the defendant to keep growing marijuana because he knew ahead of time that officers were coming over to check on his firearms.
U.S. v. Fraser, 2011 WL 3276238 (8/2/11) (Wyo.) (Published) - Yet another affirmance of a refusal to allow the jury to consider a necessity defense in a felon-in-possession case. First, the 10th questions whether a necessity defense is ever authorized to justify a felon's possession of a firearm, given the lack of a mention of that defense in § 922(g)(1) and the controversial nature of that defense in the common law. And maybe it's not even necessary given the availability of self-defense and defense-of-another defenses. After going on that tangent, the 10th holds that, even if there is such a defense, it was not available in this case because the defendant had plenty of time to call the police about the threat the shooting victim had made to him. Before the shooting, the defendant engaged in a number of errands. Before a necessity defense may be considered, the defendant must first try to seek the police's help. It doesn't matter that the defendant mistrusted the police. He had to give them a chance to protect him. The d. ct. adequately considered the § 3553(a) factors, although it did not mention § 3553(a), and adequately explained that it departed under § 5K2.21 [uncharged conduct] because the defendant was involved in cocaine trafficking for 4 years. The d. ct. did not rely on the defendant's killing of the threatener, as the defendant claimed.
Rimbert v. Eli Lilly & Co., 2011 WL 3328543 (8/3/11) (N.M.) (Published) - Yes, I did notice this is a civil non-habeas case. But it clarifies the standard a d. ct. may follow in ruling on a motion for reconsideration, which motions we come across or file occasionally. The law of the case does not apply before a d. ct.'s entry of a final judgment. So, no showing of new evidence, intervening authority or manifest injustice is required for a d. ct. to change its mind or a new judge to overturn a previously-assigned judge's ruling. In this case, it was okay for a new judge, to reverse the prior judge's ruling allowing the testimony of an expert witness.
U.S. v. Jones, 2011 WL 3329565 (8/3/11) (Okl.) (unpub'd) - A word to the wise regarding when a defendant allocutes at a drug sentencing. It was okay to vary upward for a number of reasons, including the defendant's failure to apologize to the people to whom he sold crack. He only apologized to his family and the court.
U.S. v. Nghiem, 2011 WL 3330076 (8/3/11) (Kan.) (unpub'd) - A presumption of reasonableness applies to a sentence within the child porn guideline range, even if the child porn guidelines are not empirically based. Guidelines can properly follow Congressional policy. The d. ct. erred when it considered that the defendant had violated a pretrial release condition not to use a computer, when in fact he was allowed to use a computer while on pretrial release. But no reversal because the defendant did not meet his plain error burden to show the sentence was increased because of the error. The d. ct. had rejected the 11(c)(1)(C) plea to a lower sentence long before the perceived violation and sentenced at the bottom of the guideline range. Perhaps if the sentence was at the high end, the defendant might have met his burden.
Contrearas-Bocanegra v. Holder, 2011 WL 3332469 (8/2/11) (Published) - The 10th grants rehearing en banc on issues relating to whether an alien can pursue a motion to reopen after he's been physically removed from the U.S. The panel decision was unfavorable to the alien
U.S. v. Fraser, 2011 WL 3276238 (8/2/11) (Wyo.) (Published) - Yet another affirmance of a refusal to allow the jury to consider a necessity defense in a felon-in-possession case. First, the 10th questions whether a necessity defense is ever authorized to justify a felon's possession of a firearm, given the lack of a mention of that defense in § 922(g)(1) and the controversial nature of that defense in the common law. And maybe it's not even necessary given the availability of self-defense and defense-of-another defenses. After going on that tangent, the 10th holds that, even if there is such a defense, it was not available in this case because the defendant had plenty of time to call the police about the threat the shooting victim had made to him. Before the shooting, the defendant engaged in a number of errands. Before a necessity defense may be considered, the defendant must first try to seek the police's help. It doesn't matter that the defendant mistrusted the police. He had to give them a chance to protect him. The d. ct. adequately considered the § 3553(a) factors, although it did not mention § 3553(a), and adequately explained that it departed under § 5K2.21 [uncharged conduct] because the defendant was involved in cocaine trafficking for 4 years. The d. ct. did not rely on the defendant's killing of the threatener, as the defendant claimed.
Rimbert v. Eli Lilly & Co., 2011 WL 3328543 (8/3/11) (N.M.) (Published) - Yes, I did notice this is a civil non-habeas case. But it clarifies the standard a d. ct. may follow in ruling on a motion for reconsideration, which motions we come across or file occasionally. The law of the case does not apply before a d. ct.'s entry of a final judgment. So, no showing of new evidence, intervening authority or manifest injustice is required for a d. ct. to change its mind or a new judge to overturn a previously-assigned judge's ruling. In this case, it was okay for a new judge, to reverse the prior judge's ruling allowing the testimony of an expert witness.
U.S. v. Jones, 2011 WL 3329565 (8/3/11) (Okl.) (unpub'd) - A word to the wise regarding when a defendant allocutes at a drug sentencing. It was okay to vary upward for a number of reasons, including the defendant's failure to apologize to the people to whom he sold crack. He only apologized to his family and the court.
U.S. v. Nghiem, 2011 WL 3330076 (8/3/11) (Kan.) (unpub'd) - A presumption of reasonableness applies to a sentence within the child porn guideline range, even if the child porn guidelines are not empirically based. Guidelines can properly follow Congressional policy. The d. ct. erred when it considered that the defendant had violated a pretrial release condition not to use a computer, when in fact he was allowed to use a computer while on pretrial release. But no reversal because the defendant did not meet his plain error burden to show the sentence was increased because of the error. The d. ct. had rejected the 11(c)(1)(C) plea to a lower sentence long before the perceived violation and sentenced at the bottom of the guideline range. Perhaps if the sentence was at the high end, the defendant might have met his burden.
Contrearas-Bocanegra v. Holder, 2011 WL 3332469 (8/2/11) (Published) - The 10th grants rehearing en banc on issues relating to whether an alien can pursue a motion to reopen after he's been physically removed from the U.S. The panel decision was unfavorable to the alien
posted by Anonymous at 3:47 PM
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