Several 10th Circuit cases:
U.S. v. Cordery, 2011 WL 3805760 (8/30/11) (Utah) (unpub'd) - The d. ct. committed reversible plain error in violation of Tapia v. U.S., 131 S. Ct. 2382 (2011), when it imposed a sentence five months above the low end of the guideline range because it believed the defendant needed that much extra time to qualify for RDAP. The circuits differ on whether to be plain an error must be plain at the d. ct. level or just at the appellate level. The 10th's precedent says it's the situation at the time of appeal that matters. The panel followed that precedent, while perhaps indicating it was unhappy with that conclusion. The error was plain now because of the Tapia decision. An impatient panel in U.S. v. Story, 635 F.3d 1241 (10th Cir. 2011), had found no plain error with respect to the identical issue shortly before the issuance of the Tapia decision because the S. Ct. had not yet decided Tapia and the circuits were divided. The parties agreed there was a reasonable probability the d. ct. would have imposed a lower sentence absent the error and because of that and "more importantly," because the d. ct. may have imposed a sentence below the range absent the error, the error seriously affected the fairness, integrity and public reputation of judicial proceedings.
U.S. v. Chang Hong, 2011 WL 3805763 (8/30/11) (Okl.) (Published) - Padilla v. Kentucky, 130 S. Ct. 1473 (2010), which decided that defense attorneys have an obligation to inform their clients of the immigration consequences of their guilty pleas, is a new rule that is not retroactively applicable under Teague v. Lane, 489 U.S. 288 (1989). Consequently, the 2255 motion was untimely because it was filed more than a year after the movant's conviction was final, although it was filed within a year of Padilla. So there will be no flood of Padilla victories in federal courts in the 10th Circuit.
Mascorro v. Billings, 2011 WL 3836439 (8/31/11) (Okl.) (Published) - An officer's warrantless entry into the plaintiff's home to arrest a minor for driving without taillights violated the Fourth Amendment. The minor had ignored the officer's signal to stop and entered the home, . The presumption of unreasonableness of warrantless home entry is difficult to rebut when the offense of the fleeing suspect is minor. There were insufficient exigent circumstances. There was only one exit from the home so that the risk of escape was extremely low. There was no evidence which could have been destroyed and no officer safety concerns. It was clearly established the officer's alleged conduct was unconstitutional, precluding qualified immunity. The S. Ct. has always required additional circumstances to permit the pursuit of a misdemeanant into a home.
U.S. v. Irvin, 2011 WL 3833812 (8/31/11) (Kan.) (Published) - The 10th reverses some of the two defendants' mortgage-fraud-related convictions. The d. ct. abused its discretion when it admitted a summary exhibit that summarized documents concerning which the government had not established the prerequisites for a business-record hearsay exception. The person testifying about the records could not say whether the title companies for whom he did not work kept the records in the regular course of business. The d. ct. was wrong to admit the exhibit on the grounds that it "had heard nothing contradicting the notion they were business records." The burden was on the proponent of the evidence to prove its admissibility. The government did not prove the error harmless with respect to one count because the exhibit "reduced weeks of complex testimony and inadmissible hearsay into an easily digested summary" and because, in seeking its admission, the government touted it as being very important. The error was harmless for other counts because the allegations in the exhibit were independently supported by admissible evidence. There was insufficient evidence one defendant assisted the other in committing contempt of court by violating his conditions of release, which prohibited committing crimes, because there was no evidence the defendant was aware of those conditions, although the co-defendant had told another about the conditions.
A document was a business record of one company even though it was originally prepared by a different company. The fraudulent financial information the defendant submitted to the bank had no actual impact on the ultimate issuance of the loan, but the information was "material" for bank fraud purposes because it had the capability of influencing the loan decision. There was sufficient evidence the funds disbursed by the bank that the defendant used to buy a house constituted gross receipts and so there was sufficient evidence of money laundering, even though the judge's instructions required that the funds be profits. The law of the case as to the elements did not apply where the government objected to the more defense-friendly jury instruction. There was sufficient evidence the defendant was aware the proceeds from a loan were criminally-derived proceeds, given his personal involvement in the substantive act of bank fraud that procured the proceeds. The loan proceeds were derived from an FDIC institution, even though the non-FDIC lender was the one who ultimately provided the money because the money came from the credit line extended by an FDIC bank. The inconsistent verdict of guilt for money laundering was valid even though the jury acquitted the defendant of the underlying fraud involved. The prosecutor's closing remark that the defendants' subprime mortgage scam was not helpful to society was a proper response to a defendant's testimony. There was sufficient evidence the criminal activity involved 5 or more participants, justifying an organizer-/leader enhancement.
U.S. v. Acosta-Gallardo, 2011 WL 3805764 (8/30/11) (Wyo.) (Published) - The defendant did not establish a Brady violation for disclosing late the fact that a government witness would testify the defendant had handled certain glass jars. This deprived the defendant of the chance to fingerprint the jars and show he hadn't touched the jars, undermining the witness's credibility. The defendant had not shown the evidence would be favorable or material because the defendant didn't show his prints weren't on the jars and even if he had, there could be many reasons for no prints or the witness could have innocently misrecollected. In a question of first impression, the 10th holds that proper venue for a telephone facilitation charge is in the district where either of the phone call participants is or, as in this case, where the facilitated drug felony took place. The government presented ample evidence that numerous overt acts of the conspiracy occurred in Wyoming. That was enough to establish venue even if the defendant never set foot in Wyoming. The defendant did not meet his burden to show the failure to instruct on venue was plain error because the defendant did not argue on appeal that it was. The government presented sufficient evidence of interdependency ,even though the defendant did not know several of the co-conspirators. It was enough that the evidence showed a "chain-and-link" conspiracy where the overall objective was to distribute meth for profit. The government did not introduce facts different from those alleged in the indictment.
U.S. v. Perez-Jimenez, 2011 WL 3648231 (8/19/11) (Colo.) (Published) - I'm sure you're thinking: "Didn't he already report on this case?" Yes, I did, but now sua sponte the 10th Circuit decided to publish it. The case holds that courts must look to the facts of the instant offense to decide if it's a crime of violence under the career offender guidelines and possessing two long shanks in prison is a crime of violence.
U.S. v. Rincon-Torres, 2011 WL 3795672 (8/29/11) (Kan.) (unpub'd) - Counsel did not waive the defendant's right to appeal the sentence when counsel said he had no objections to the court's proposed findings of fact and tentative sentence. Counsel had thoroughly raised and argued opposition to the 16-level enhancement. In context, counsel only meant that he did not raise any other issues than the ones he already had raised. But the argument that the 16-level offense was too old didn't cut it.
U.S. v. Vermillion, 2011 WL 3873816 (9/2/11) (Kan.) (unpub'd) - The defendant's appeal waiver waived his right to appeal, even though he was challenging the content of his PSR, not his sentence.
U.S. v. Landry, 2011 WL 3805499 (8/30/11) (Wyo.) (unpub'd) - Providing drugs on credit can be sufficient to demonstrate a conspiracy to distribute drugs. In calculating drug quantity for sentencing purposes, to show a certain amount was for personal use, the defendant must produce evidence tending to demonstrate he always intended to personally consume some specific portion of the drugs received from his co-conspirator. The defendant did not produce such evidence here.
Litteral v. Marshall, 2011 WL 3836441 (8/31/11) (N.M.) (unpub'd) - The N.M. S. Ct.'s interpretation of state law to preclude the award of good time credits to life prisoners was not so unforeseeable as to violate due process.
Miskovsky v. Jones, 2011 WL 3805610 (8/30/11) (Okl.) (unpub'd) - The 10th overturns a dismissal of a ยง 1983 suit. The prisoner alleged enough to warrant relief if true where he claimed he asked a duty officer why he was transferred and the duty officer said because he had really "pissed off a judge" by filing certain pleadings in federal court 15 days before and the new prison was more dangerous.
Sigala v. Bravo, 2011 WL 3805772 (8/30/11) (unpub'd) - The state did not create an unconstitutional impediment to the petitioner's timely filing of a 2254 petition, even though he claimed his attorney did not tell him about the final decision in his case. The state did enough by notifying counsel of the decision.
U.S. v. Cordery, 2011 WL 3805760 (8/30/11) (Utah) (unpub'd) - The d. ct. committed reversible plain error in violation of Tapia v. U.S., 131 S. Ct. 2382 (2011), when it imposed a sentence five months above the low end of the guideline range because it believed the defendant needed that much extra time to qualify for RDAP. The circuits differ on whether to be plain an error must be plain at the d. ct. level or just at the appellate level. The 10th's precedent says it's the situation at the time of appeal that matters. The panel followed that precedent, while perhaps indicating it was unhappy with that conclusion. The error was plain now because of the Tapia decision. An impatient panel in U.S. v. Story, 635 F.3d 1241 (10th Cir. 2011), had found no plain error with respect to the identical issue shortly before the issuance of the Tapia decision because the S. Ct. had not yet decided Tapia and the circuits were divided. The parties agreed there was a reasonable probability the d. ct. would have imposed a lower sentence absent the error and because of that and "more importantly," because the d. ct. may have imposed a sentence below the range absent the error, the error seriously affected the fairness, integrity and public reputation of judicial proceedings.
U.S. v. Chang Hong, 2011 WL 3805763 (8/30/11) (Okl.) (Published) - Padilla v. Kentucky, 130 S. Ct. 1473 (2010), which decided that defense attorneys have an obligation to inform their clients of the immigration consequences of their guilty pleas, is a new rule that is not retroactively applicable under Teague v. Lane, 489 U.S. 288 (1989). Consequently, the 2255 motion was untimely because it was filed more than a year after the movant's conviction was final, although it was filed within a year of Padilla. So there will be no flood of Padilla victories in federal courts in the 10th Circuit.
Mascorro v. Billings, 2011 WL 3836439 (8/31/11) (Okl.) (Published) - An officer's warrantless entry into the plaintiff's home to arrest a minor for driving without taillights violated the Fourth Amendment. The minor had ignored the officer's signal to stop and entered the home, . The presumption of unreasonableness of warrantless home entry is difficult to rebut when the offense of the fleeing suspect is minor. There were insufficient exigent circumstances. There was only one exit from the home so that the risk of escape was extremely low. There was no evidence which could have been destroyed and no officer safety concerns. It was clearly established the officer's alleged conduct was unconstitutional, precluding qualified immunity. The S. Ct. has always required additional circumstances to permit the pursuit of a misdemeanant into a home.
U.S. v. Irvin, 2011 WL 3833812 (8/31/11) (Kan.) (Published) - The 10th reverses some of the two defendants' mortgage-fraud-related convictions. The d. ct. abused its discretion when it admitted a summary exhibit that summarized documents concerning which the government had not established the prerequisites for a business-record hearsay exception. The person testifying about the records could not say whether the title companies for whom he did not work kept the records in the regular course of business. The d. ct. was wrong to admit the exhibit on the grounds that it "had heard nothing contradicting the notion they were business records." The burden was on the proponent of the evidence to prove its admissibility. The government did not prove the error harmless with respect to one count because the exhibit "reduced weeks of complex testimony and inadmissible hearsay into an easily digested summary" and because, in seeking its admission, the government touted it as being very important. The error was harmless for other counts because the allegations in the exhibit were independently supported by admissible evidence. There was insufficient evidence one defendant assisted the other in committing contempt of court by violating his conditions of release, which prohibited committing crimes, because there was no evidence the defendant was aware of those conditions, although the co-defendant had told another about the conditions.
A document was a business record of one company even though it was originally prepared by a different company. The fraudulent financial information the defendant submitted to the bank had no actual impact on the ultimate issuance of the loan, but the information was "material" for bank fraud purposes because it had the capability of influencing the loan decision. There was sufficient evidence the funds disbursed by the bank that the defendant used to buy a house constituted gross receipts and so there was sufficient evidence of money laundering, even though the judge's instructions required that the funds be profits. The law of the case as to the elements did not apply where the government objected to the more defense-friendly jury instruction. There was sufficient evidence the defendant was aware the proceeds from a loan were criminally-derived proceeds, given his personal involvement in the substantive act of bank fraud that procured the proceeds. The loan proceeds were derived from an FDIC institution, even though the non-FDIC lender was the one who ultimately provided the money because the money came from the credit line extended by an FDIC bank. The inconsistent verdict of guilt for money laundering was valid even though the jury acquitted the defendant of the underlying fraud involved. The prosecutor's closing remark that the defendants' subprime mortgage scam was not helpful to society was a proper response to a defendant's testimony. There was sufficient evidence the criminal activity involved 5 or more participants, justifying an organizer-/leader enhancement.
U.S. v. Acosta-Gallardo, 2011 WL 3805764 (8/30/11) (Wyo.) (Published) - The defendant did not establish a Brady violation for disclosing late the fact that a government witness would testify the defendant had handled certain glass jars. This deprived the defendant of the chance to fingerprint the jars and show he hadn't touched the jars, undermining the witness's credibility. The defendant had not shown the evidence would be favorable or material because the defendant didn't show his prints weren't on the jars and even if he had, there could be many reasons for no prints or the witness could have innocently misrecollected. In a question of first impression, the 10th holds that proper venue for a telephone facilitation charge is in the district where either of the phone call participants is or, as in this case, where the facilitated drug felony took place. The government presented ample evidence that numerous overt acts of the conspiracy occurred in Wyoming. That was enough to establish venue even if the defendant never set foot in Wyoming. The defendant did not meet his burden to show the failure to instruct on venue was plain error because the defendant did not argue on appeal that it was. The government presented sufficient evidence of interdependency ,even though the defendant did not know several of the co-conspirators. It was enough that the evidence showed a "chain-and-link" conspiracy where the overall objective was to distribute meth for profit. The government did not introduce facts different from those alleged in the indictment.
U.S. v. Perez-Jimenez, 2011 WL 3648231 (8/19/11) (Colo.) (Published) - I'm sure you're thinking: "Didn't he already report on this case?" Yes, I did, but now sua sponte the 10th Circuit decided to publish it. The case holds that courts must look to the facts of the instant offense to decide if it's a crime of violence under the career offender guidelines and possessing two long shanks in prison is a crime of violence.
U.S. v. Rincon-Torres, 2011 WL 3795672 (8/29/11) (Kan.) (unpub'd) - Counsel did not waive the defendant's right to appeal the sentence when counsel said he had no objections to the court's proposed findings of fact and tentative sentence. Counsel had thoroughly raised and argued opposition to the 16-level enhancement. In context, counsel only meant that he did not raise any other issues than the ones he already had raised. But the argument that the 16-level offense was too old didn't cut it.
U.S. v. Vermillion, 2011 WL 3873816 (9/2/11) (Kan.) (unpub'd) - The defendant's appeal waiver waived his right to appeal, even though he was challenging the content of his PSR, not his sentence.
U.S. v. Landry, 2011 WL 3805499 (8/30/11) (Wyo.) (unpub'd) - Providing drugs on credit can be sufficient to demonstrate a conspiracy to distribute drugs. In calculating drug quantity for sentencing purposes, to show a certain amount was for personal use, the defendant must produce evidence tending to demonstrate he always intended to personally consume some specific portion of the drugs received from his co-conspirator. The defendant did not produce such evidence here.
Litteral v. Marshall, 2011 WL 3836441 (8/31/11) (N.M.) (unpub'd) - The N.M. S. Ct.'s interpretation of state law to preclude the award of good time credits to life prisoners was not so unforeseeable as to violate due process.
Miskovsky v. Jones, 2011 WL 3805610 (8/30/11) (Okl.) (unpub'd) - The 10th overturns a dismissal of a ยง 1983 suit. The prisoner alleged enough to warrant relief if true where he claimed he asked a duty officer why he was transferred and the duty officer said because he had really "pissed off a judge" by filing certain pleadings in federal court 15 days before and the new prison was more dangerous.
Sigala v. Bravo, 2011 WL 3805772 (8/30/11) (unpub'd) - The state did not create an unconstitutional impediment to the petitioner's timely filing of a 2254 petition, even though he claimed his attorney did not tell him about the final decision in his case. The state did enough by notifying counsel of the decision.
posted by Anonymous at 11:55 AM
<< Home