A few 10th Circuit cases:

Henry v. Story, 2011 WL 4537796 (10/13/11) (N.M.) (Published) - In a civil rights case, an Albuquerque police officer did not use excessive force when he pointed his firearm at the plaintiff, whom the officer saw driving a car with a license plate that returned an NCIC "hit." [The "hit" turned out to be incorrect.]. By virtue of that "hit," the officer had probable cause to believe the plaintiff had stolen a vehicle, which is a felony, and he could reasonably believe the plaintiff posed an immediate threat to the public given the plaintiff's strong incentive to evade arrest by driving away. It doesn't matter that the officer didn't know whether or not the car had been stolen by force. The jury instructions did not incorrectly indicate the officers' adherence to standard operating procedures rendered their actions reasonable.

U.S. v. Lopez-Estrada, 2011 WL 4640859 (10/7/11) (Kan.) (unpub'd) - The officer had reasonable suspicion to believe the defendant's license plate violated a statute that requires the secure fastening of a plate to prevent swinging, even though the officer did not see the plate swinging while the defendant was driving. The officer could reasonably believe a jury-rigged job of affixing a plate might leave it poorly fastened and cause it to swing. [There's a picture of the securely-fastened license plate in the opinion].

Blazier v. Larson, 2011 WL 4552525 (10/4/11) (Utah) (unpub'd) - The prosecutor had absolute immunity from being sued for his threats to the plaintiff that if he kept publicly criticizing people who were allegedly the victims of the plaintiff's assault, the prosecutor would renew the assault charges he had dismissed. It was within the prosecutor's authority to make a threat to bring charges for conduct the officer believed to be felonious.

U.S. v. Wilson, 2011 WL 4552520 (10/4/11) (Utah) (unpub'd) - A 21-month guideline sentence was not substantively unreasonable for escape where the d. ct. noted the defendant walked out one month before his sentence ended and showed a confronting officer the peace sign. The facts indicated the defendant still had not learned his lesson.

Drug Conviction Reversed Because of Improper Admission of Prior Conduct Evidence

A few 10th Cir. cases, including a real nice defense victory, and S. Ct. cert grants.


First, the 10th:

U.S. v. Moncayo, 2011 WL 4822974 (10/12/11) (N.M.) (unpub'd) The 10th reverses a possession of cocaine with the intent to distribute conviction because the judge erroneously allowed the admission of evidence of the defendant's prior cocaine-related conduct. In the instant case, lots of cocaine base was found in this trailer where the defendant was also found. The defense was that the defendant did not live in that trailer, but lived somewhere else. The defendant did not contest the intent to distribute element of the charge. The judge, [after asking his law clerk on the record what he should do and then misinterpreting what she said, while she suggested they consult off the record,] admitted, pursuant to Rule 404(b), evidence that, 16 months before the events leading to the charge in this case, an officer saw the defendant reach under the hood of a car and drop something, which later was found to be a clear plastic baggie with several different baggies inside containing cocaine, packaging commonly used to ease the sale of drugs. The government sought the admission of this evidence to prove intent to distribute. But the prior-act evidence was minimally relevant for that purpose because there was no showing how the cocaine was packaged in this case, [The court held it against the government that the photo of the sock in which the cocaine was found, while admitted into evidence, was not made part of the record], and intent was not in dispute. This minimal probative value was substantially outweighed by the danger of unfair prejudice and confusion caused by the evidence. It impugned the defendant's character and portrayed him as a drug dealer who was likely to posses the cocaine in this case because he had possessed cocaine in the past. And the judge's limiting instruction wasn't limiting at all. It told the jury it could be used for all the purposes laid out in 404(b), not just the one purpose the government said it wanted it used for. The government did not prove the error harmless because, although it put on substantial evidence the defendant lived in the trailer where the cocaine was found, the defendant put on credible evidence he lived elsewhere. It was likely the jury used the prior-act evidence for improper propensity reasons.

Palmer v. Board of Commissioners for Payne County Oklahoma, 2011 WL 4867555 (10/14/11) (Okl.) (unpub'd) - The jail administrator's refusal to take the plaintiff prisoner to the hospital in accord with a doctor's directions to address a MRSA infection would constitute a constitutional violation, if proven. It's no excuse that the administrator did not know the plaintiff was suffering from MRSA. It's enough that a doctor said the plaintiff should be taken to a hospital if he developed increased pain. A prison official cannot ignore an inmate's complaints of pain just because they are subjective.

Mays v. Dinwiddie, 2011 WL 4866469 (10/14/11) (Okl.) (unpub'd) - Oklahoma might have used the wrong ineffective-assistance-of-counsel standard when it indicated the merits of the issue the attorney failed to raise didn't matter to the resolution of the ineffective assistance of appellate counsel issue. But no relief anyway.


Cert Grants:

Blueford v. Arkansas, 2011 WL 1595979 (10/11/11) - Would it be a violation of double jeopardy to retry the defendant on first degree murder where the jury announced it had vote unanimously against first-degree murder, but could not agree on the manslaughter offense?

U.S. v. Alvarez, 2011 WL 3626544 (10/17/11) - Does the Stolen Valor Act, 18 U.S.C. § 704(b), which criminalizes falsely representing that you have been awarded a Congressional medal of honor, violate the Free Speech Clause of the First Amendment?

Kiobel v. Royal Dutch Petroleum, 2011 WL 4905479 (10/17/11) - Whether the Alien Torture Statute allows tort liability for corporations.

Mohumad v. Rajoub, 2011 WL 3055314 (10/17/11) - Whether the Torture Victim Protection Act permits actions against defendants that are not natural persons, such as the PLO.

Life Sentence in US v. Lujan

The jury took less than four hours to return a non-unanimous verdict of life imprisonment in United States v. Larry Lujan, a New Mexico case in which the government sought a death sentence. This case was previously the subject of a Tenth Circuit appeal, US v. Lujan, 603 F.3d 850 (10th Cir. 2010).

Luevano v. Holder, 2011 WL 4509473 (9/30/11) (Published) - The alien did not present enough facts about his arrest to show it was so fundamentally unfair so as to warrant exclusion of evidence. The removal proceedings themselves could not be dismissed as fruit of any poisonous tree. It was okay for the BIA to deny the alien's motion to continue the removal proceedings until he could be lawfully here pursuant to his U.S. citizen sister's application for his adjustment of status. It looked like it would take more than 18 years for her application to be granted, given the long waiting list and limited number of adjustments allowed each year.

U.S. v. Salvador-Munoz, 2011 WL 4526002 (9/30/11) (Okl.) (unpub'd) - The reentry defendant was not entitled to a duress or necessity defense, despite the Zetas' gangs threats to hurt him [a useful courier because he spoke English] if he didn't help them smuggle drugs to the U.S. by a certain deadline. The defendant had other lawful alternatives besides committing the horrible crime of entering the U.S. He could have moved to another Mexican town where his dad felt safe. His fear that another gang might threaten him if he moved to another town was insufficient to satisfy the imminent-threat requirement.

U.S. v. Villanueva, 2011 WL 4489567 (9/29/11) (N.M.) (unpub'd) - While the 10th Circuit acknowledged: "the better approach would have been for the d. ct. to permit the agent to testify "so that the d.ct. could determine whether the defendant met the complete and truthful part of the requirements to qualify for the safety valve reduction. Unfortunately, all the other sentences in the opinion were not so nice. The 10th declared the defendant gave untruthful or incomplete information about a few things and therefore the agent's testimony wouldn't have made a difference.

Navarro-Perez v. Holder, 2011 WL 4509484 (9/30/11) (unpub'd) - The 10th chastises both counsel for not submitting a 28(j) letter about a new 10th Circuit case that changed the law. So, to avoid such chastisement, it might be wise to submit a 28(j) even about a really bad new case.

Cert grants:

Wood v. Milyard, 2011 WL 1456997 (9/27/11) - Whether it was okay for the 10th to sua sponte raise the statute of limitations defense where the state had declared before the d. ct.: "the state will not challenge, but is not conceding, the timeliness of the habeas petition." And was the state's declaration a deliberate waiver of the statute of limitations defense.

Filarsky v. Delia, 2011 WL 496619 (9/27/11) - Does qualified immunity protect a private attorney who advises a city?

Vartelas v. Holder, 2011 WL 1302166 (9/27/11) - Whether an Illegal Immigration Reform and Immigration Responsibility Act provision, passed in 1996, which denies certain legal permanent residents with a certain criminal history the right to make casual trips abroad without fear of reentry denial, apply retroactively where the alien entered the relevant guilty plea before passage of the Act.

New Edition of Introduction to Federal Sentencing Released

The Western District of Texas Federal Defender has announced the release of a new edition of their very helpful Introduction to Federahttp://www.blogger.com/img/blank.gifl Sentencing. The Thirteenth Edition is current through the Supreme Court's last term, the Sentencing Commission's latest amendments, and AG Holder's decision to agree to retroactive application of the FSA.

New to this edition are a small section on the child pornography guidelines and a section at the end summarizing each of the Supreme Court's post-Booker cases on the advisory guidelines system. I have also added internal bookmarks and hyperlinks to allow readers to navigate around the document more easily when reading it online.

Walking the Dog

US v. Burleson, -- F.3d --, 2011 WL 4015679 (10th Cir. 9/12/11) (NM) - The COA reverses the grant of suppression by Judge Vazquez, who had ruled that the officer improperly checked for warrants after he had already satisfied the suspicion underlying the stop. The COA decides the officer who stopped three pedestrians walking down the middle of a Roswell street, one of them carrying a pit bull without a leash, lawfully performed a warrants check during a proper Terry investigatory stop, which led to discovery of an outstanding warrant for Mr. Burleson and to his illegal possession of guns and ammunition. An officer is entitled to ask a suspect to identify himself and to do a warrant check, whether the stop involves a motorist or a pedestrian. This furthers the important government interest in determining whether a suspect is wanted for another offense or has a record of violence or a mental disorder that might lead to violent activity that could put the officer's safety at risk.

U.S. v. Blechman, 2011 WL 4060250 (9/14/11) (Kan.) (Published) - The 10th holds the d. ct. erred in admitting AOL and PACER records indicating to whom the particular accounts belonged because that information was hearsay. While witnesses testified the records were prepared in the regular course of business, the relevant information was unverified user-input information, i.e., it was provided by an outsider to the business who was not under a duty to provide accurate information. The businesses did not have a policy of verifying the information's accuracy. Nor was there proof the businesses had a sufficient self-interest in the information's accuracy. But the error was harmless. Several other pieces of evidence connected the defendant to the e-mail address, including the signature block, And the PACER evidence related to an uncharged scheme in another state, while there was plenty of evidence of the defendant's involvement in the charged scheme [which was filing false documents for bankruptcies to delay home forfeitures]. In a concurrence, Judge Hartz contended the evidence would have been admissible had it been admitted solely for the limited purpose of showing that someone had used the defendant's name to set up the accounts. Distinguishing a 1993 10th Circuit case, Judge Hartz says that, now that jurors would appreciate how prevalent identity fraud is, the jurors might be capable of using the evidence only for its proper nonhearsay purpose.

U.S. v. Cordery, 2011 WL 3805760 (8/30/11) (Utah) (Published) - I mistakenly previously reported this important case establishing that it is plain error to lengthen a term of imprisonment for rehabilitation purposes was unpublished. It's actually published.

U.S. v. Flores-Olmos, 2011 WL 4059044 (9/14/11) (Okl.) (unpub'd) - It was okay for the officer during a valid traffic stop to ask the defendant about his immigration status, even though the question was unrelated to the reason for the stop and the officer had no reasonable suspicion the defendant was unlawfully here. The defendant did not establish the stop was motivated by racial profiling in violation of equal protection.