Wednesday, January 11, 2012

A few 10th Cir. cases, S. Ct. news and a note regarding the amendments to the 10th Circuit rules.

First, the 10th:

U.S. v. Sunday, 2012 WL 11245 (1/4/12) (Wyo.) (unpub'd) - The 10th finds plain error reversal is warranted where the d. ct., as a supervised release condition, prohibited the defendant, who had been repairing computers for a living, from possessing a computer that was not authorized by the probation officer and imposed monitoring and surveillance conditions on any computer he came into contact with. The d. ct. did not make the findings required to justify an occupational restriction. The defendant committed some of his fraud through the use of a computer, but not primarily. Restrictions on computers, which are used for routine activities, should be the minimum possible to protect the public. The 10th cited favorably a 3rd circuit case that said a plainly erroneous supervised release condition will inevitably affect substantial rights under the 3rd prong of the plain error test. The 10th also directed the d. ct. to revisit its mental health evaluation and treatment conditions consistent with its decision in U.S. v. Mike, 632 F.3d 686 (10th Cir. 2011).

U.S. v. Robles, 2012 WL 29044 (1/6/12) (Kan.) (unpub'd) - Under plain error review [the defendant only contested whether his conduct constituted a violation of the law], the 10th says it is okay to designate a positive urine test for cocaine as a Grade B, not Grade A, violation because 21 U.S.C. ยง 844 would have raised the offense of possession of cocaine to a felony by virtue of the defendant's underlying federal conviction for cocaine distribution.

U.S. v. Ferguson, 2012 WL 29047 (1/6/12) (Ut.) (unpub'd) - Another preservation cautionary tale. Defense counsel's assertion before the d. ct. that a lab test showed some of the seized ecstasy pills weighed less than what the guidelines presumed they weighed was inconsequential because counsel presented no actual evidence in that regard. Attorneys' statements are not evidence.

S. Ct. News:

Florida v. Jardines, 2012 WL 28952 (1/6/12) - The S. Ct. grants cert on the issue whether the police must have probable cause before using a dog sniff at the front door of a suspected "grow house." The Fla. S. Ct. held the dog sniff was a search under the 4th Amendment. That decision may very well be in trouble.

Cash v. Maxwell, 2012 WL 33989 (1/9/12) - A rare denial of cert where the 9th granted a habeas petition prompts an angry dissent by Justice Scalia joined by Justice Thomas and a response by Justice Sotomayor by herself. The 9th granted relief because the state court's finding that there was no credible evidence a jailhouse informant lied at the petitioner's trial was unreasonable. The witness was "one of the most notorious jailhouse informants in the history of Los Angeles County." Justice Sotomayor described Justice Scalia's dissent as insisting it was possible the informant told the truth this one time, despite all his other false testimony. She noted cert review was only supposed to be for important questions of law, not to correct fact-based errors. She pointed out the 9th recognized the stringent AEDAP standard of review. Justice Scalia felt the 9th had not abided by that standard and that, besides, the 9th held there was a due process violation without requiring that the prosecution know the witness was lying. He complained that the S. Ct. has had to constantly rebuke the 9th in fact-bound cases because the 9th has repeatedly second-guessed state courts in habeas cases.

10th Circuit Rules:

The 10th Circuit has a new version of its rules that is much like its old rules. The only real change is that it has now incorporated in the rules its standing General Orders, such as its order regarding electronic filing.