Friday, February 24, 2012

A few 10th Circuit cases:

U.S. v. West, 2012 WL 4456488 (2/14/12) (Kan.) (Published) - The 10th interprets 21 U.S.C. 860(e)(1)'s definition of "playground": "an outdoor public facility containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards." The principle of ejusdem generis does not apply to this definition to restrict the relevant apparatus to only equipment that are like slides, etc.. The phrase "including, but not limited to" and the fact that the specific items followed, not preceded, the general term, indicates that principle does not apply. Plus, Congress did not intend to narrow the definition of "children" from people under 18 to those young enough to play on slides, etc. At a minimum the baseball field with a backstop qualified as an apparatus. So together with a jungle gym and a swingset, there was sufficient evidence of a playground within 1,000 feet of the drug activity. Judge Lucero concurred in the judgment. He saw no need to hold ejusdem generis did not apply. An application of that doctrine would lead to the conclusion a baseball backstop was like the other named apparatus in relevant respects.

U.S. v. Coulter, 2012 WL 453642 (2/14/12) (Okl.) (unpub'd) - 4th Amendment decision by Judge Gorsuch. Officers cruised a neighborhood in an unmarked pickup to keep an eye on a house in a cul de sac. The defendant, who was outside talking on a cell phone, got upset and made a gesture as though he was flagging the truck down. The officers confronted the defendant, identifying themselves and asking what he meant by the gestures. He said he didn't have to talk with them and refused to honor their request that he finish his phone call. An officer tried to grab the phone, the defendant drew it back, the officer escorted the defendant to the ground and handcuffed him. In response to their questions, the defendant indicated his girlfriend was in the house. The girlfriend answered an officer's knock, was initially "verbally aggressive" and then calmed down. The officer asked for an ID. She went to get it in the house. An officer explained he did not want her to go in the house alone. She looked back at the officer, but kept walking. She gave no indication she didn't want the officer to follow her. So he did, right into the house where he saw drugs and eventually a gun.
The treatment of the defendant is totally irrelevant. His detention did not set in motion the chain of events leading to the evidence of illegal activity. The defendant had flagged down the truck in a manner suggesting a need for help or a wish for confrontation [because a pickup was casing the area]. That and his refusal to speak and the sighting of a woman exiting the home earlier would have prompted the officers to see if anyone was home regardless of the detention. The officers needed to see if anyone needed help in the house or if the defendant had backup while they resolved the conflict. It was the defendant's refusal to explain himself [a constitutional right], not his detention, that created an ambiguous situation the officers had to investigate. The girlfriend consented to the officers' entry by silence and acquiescence. A reasonable officer would interpret the girlfriend's actions as allowing the officer to follow. And, of course, a reasonable officer would not think she felt she had no choice in the matter.

U.S. v. Lewis, 2012 WL 503859 (2/16/12) (Col.) (unpub'd) - The d. ct. plainly erred in violation of Tapia when it explained its sentence was meant "to provide the defendant with an opportunity for rehabilitation both in and out of prison." But the defendant did not prove the error made any difference as to the length of his sentence because the d .ct. made the problematic statement as part of a sort-of boilerplate discussion at the tail end of the announcement of the sentence.

U.S. v. Jordan, 2012 WL 476491 (2/15/12) (Col.) (unpub'd) - The habeas petitioner was not entitled to equitable tolling where his attorney abandoned him 2 weeks before the AEDPA deadline. He managed to file the petition timely anyway. But because of the time limit, he was not allowed to amend the petition after the deadline passed to add issues that did not relate back to the issues he raised in the original timely petition. The petitioner could not prevail on his claim that counsel should have presented a certain witness because the petitioner only alleged what the witness would say, but did not supply an affidavit or other competent evidence establishing what the witness would have said if called to testify.

Myers v. Koopman, 2012 WL 453632 (2/14/12) (Col.) (unpub'd) - An officer was not immune from ยง 1983 lawsuit for malicious prosecution. Not even a prosecutor would be immune from suit for falsifying information in affidavits and giving false testimony at a preliminary hearing.