Several 10th Circuit cases and a cert grant. First the 10th:
U.S. v. Lopez-Avila, 2011 WL 6008982 (Col.) (Published) - An actual preservation ruling in favor of the defendant! The defendant did not have to renew his argument for a downward variance after the judge pronounced sentence. By raising the fast-track argument in his motion to vary, he preserved the argument that the d. ct. erred when the d. ct. held it had no discretion to vary based on disparities caused by the lack of a fast-track program. Plain error review only applies to alleged procedural errors at sentencing that were not properly raised in d. ct. U.S. v. Lopez-Macias,2011 WL 5310622 (10th Cir. 2011), established the d. ct. had discretion to vary based on fast-track disparities. But because the defendant only made a generalized argument and did not show he would have received a fast-track offer in another district, a variance was not justified.
U.S. v. Randall, 2011 WL 6008983 (12/2/11) (Kan.) (Published) - The 10th elects to consider an untimely appeal of a denial of a motion to reconsider the rejection of a § 3582(c)(2) motion. The government did not raise the untimeliness and the pro se defendant said he didn't receive the appealed order until 14 days after it was entered. Motions to reconsider are proper in criminal prosecutions. [I don't think this applies to sentencings, see Fed. R. Crim. P. 35(a)]. But the motion had to be filed within the time for appeal. The defendant did not file his motion in time. So he's out of luck.
U.S. v. Irving, 2011 WL 5925315 (11/29/11) (Okl.) (Published) - The 10th already decided many of the same issues in the co-defendant's case, U.S. v. Washington, 653 F.3d 1251 (2011). It finds those issues must be decided the same way under the law of the case doctrine, which precludes codefendants from relitigating an already-decided legal issue. There was sufficient evidence that the defendant possessed crack with the intent to distribute it where the controlled buy with a CI adhered to established protocol, even though the surveilling video did not show any exchange of drugs for money and the defendant had an "elaborate" explanation for what happened.
There was sufficient evidence the defendant took a substantial step toward killing a witness. The 10th acknowledged it was open to question whether the 10th could take into account the actions of the co-defendant - the would-be killer - in deciding if the defendant took a substantial step. Here the evidence showed the defendant had gone beyond "mere abstract talk" in hiring a killer. He reached a concrete agreement, settled on a definite price, the form of the payment and who would get the murder weapon,. he also undertook tangible acts that displayed a real effort to ensure the success of the hit by putting up the money to get the coordinator of the hit out of jail. The emphasis should be on what had been done, not what was still left to be done, because we don't want to make it too hard for law enforcement to decide how long they have to wait before stopping the crime [which it encouraged].
The 10th notes the law regarding when a defendant can rely on the co-defendant's objections at trial to preserve the issue for the defendant and points out the 10th has yet to take a position on vicarious objections. But the 10th does not decide the question, instead assumes the defendant here preserved the evidence issue. The law of the case doctrine meant the 10th accepted that the d.ct. was wrong to exclude a defense witness from testifying based on a violation of the sequestration rule. But the 10th chooses not to apply that doctrine to its holding in Washington's case that the error was harmless. The 10th makes an independent judgment that the error was harmless as to Mr. Irving as well because the evidence of guilt was substantial and the excluded witness would not have been able to rehabilitate a defense witness. Evidence of the would-be-murder victim's involvement in the prosecution of the defendant in a prior drug case was intrinsic evidence not governed by Rule 404(b). It explained why the defendant wanted to kill the would-be-victim. To be intrinsic the evidence need not establish an element of the charged offense. Here it was enough that it showed the defendant's motive. The evidence did not violate Rule 403. Judge Hartz wrote a concurrence suggesting the 10th should abandon the intrinsic/extrinsic dichotomy. The difference is only significant in deciding whether the government must give notice under 404(b).
U.S. v. Abramson-Schmeiler, 2011 WL 5925582 (11/29/11) (Col.) (unpub'd) - The d. ct. abused its discretion when it prohibited the defendant's accountant from testifying that he did not believe the defendant under-reported her income on purpose. But the error was harmless because the accountant effectively conveyed to the jury his belief in her innocence. The defendant's testimony that she found 1 million dollars in cash in her house was not that credible.
U.S. v. Romero, 2011 WL 5925562 (11/29/11) (Col.) (unpub'd) - The 10th affirms an upward departure from 27 months at the top end of the range to 51 months due to prior uncounted tribal and old convictions. What is interesting [or maybe just a typo] is the 10th's statement that "we would not have reached the same determination." Usually the 10th will just say it may not have reached the same determination.
Ochoa v. Workman, 2011 WL 6000510 (12/1/11) (Okl.) (unpub'd) - Another Oklahoma capital case affirmed. It was okay for the state appellate court to decide the aggravating circumstance of the risk to more than one person outweighed the mitigating circumstances after finding the evidence did not support the jury's finding that the defendant was a continuing threat.
U.S. v. Worack, 2011 WL 6000710 (12/1/11) (Col.) (unpub'd) - An odd situation where the defendant tried to prove the corporation he formed was a sham and the government tried to prove it was real. If the corporation was real then the defendant did not personally receive the corporation's money until 2000 and 2001 for which years the government charged she filed false tax returns. There was sufficient evidence the corporation was real and so sufficient evidence to convict the defendant of the tax charges.
Cert Grant:
Reichle v. Howards, 2011 WL 3812626 (12/5/11) - The S. Ct. grants cert on a good § 1983 decision by the 10th. The 10th ruled the officers did not have qualified immunity for arresting the plaintiff in retaliation for exercising his first amendment right to walk up to Dick Cheyney and criticize the Iraq war. The question is whether the plaintiff could pursue a retaliation claim, even though the officers had probable cause to arrest the plaintiff for making a false statement about whether he touched the VP. There's a S.Ct. case that says probable cause neutralizes a claim for retaliatory prosecution. Interestingly, the plaintiff did not oppose the cert grant, saying "the First Amendment needs to be vindicated nationally."
