Tuesday, March 27, 2012

U.S. v. House, No. 11-4102 (3/23/12) (Ut.) (unpub'd) - A reversal of a suppression denial. Although it established the defendant was armed, the government did not meet its burden to prove the defendant was dangerous so as to justify a frisk for weapons. An officer investigates a woman's complaint that she heard noises coming from her basement. The officer finds no evidence of a forced entry and nothing was missing. As the officer walked towards his car, he noticed the defendant walking towards the woman's house. As another patrol car approached the area, the defendant did an immediate turnaround and walked in the opposite direction he had been walking. From several feet behind, the investigating officer asks the defendant if he can ask a few questions. At first, the defendant continues walking and talking on his cell phone. The officer asks a second time and this time the defendant ended his call and turned around. The defendant kept his left hand in his coat pocket. There was a bulge in the pocket that made it seem like there was something in there in addition to a hand. The defendant denied he had any weapons, but he had a folded, folding knife protruding from his right pocket. Up to this time, the encounter was consensual, the 10th rules.
Then the officer frisks the defendant and finds a gun the defendant wasn't supposed to possess. The 10th assumes, without deciding, that an officer can frisk even if there's no reasonable suspicion ("RS") criminal activity was afoot. Importantly, the 10th says this issue is not resolved in the 10th; the statements about the legality of a patdown in U.S. v. Manjarrez, 348 F.3d 881 (10th Cir. 2003) were just dicta. The officer had reasonable suspicion the defendant was armed because of the knife and the bulge. But there was no indication the defendant was presently dangerous. Nothing suggested the defendant's involvement in a crime [he was walking toward the woman's house, not away from it]. Unlike another case, the defendant did not refuse to remove his hand from his pocket. He was fully compliant. A folded knife is not a danger to an officer 6-8 feet away. Many law-abiding folks would not consider a folded knife a weapon when asked by an officer if they had a weapon. The majority distinguishes this case from a situation where the defendant is detained. Then the defendant might have been dangerous. The government's position affords too little protection for people's Fourth Amendment and Second Amendment [perhaps the key here] rights. Just because you're armed doesn't make you dangerous. Judge Baldock in dissent worries that the decision exposes officers to unreasonable dangers. First, Judge Baldock finds no RS of a crime is needed to frisk someone. Second, he sees officers under the majority's holding consensually approaching only harmless people and avoiding dangerous ones. Third, an armed person is usually dangerous except maybe if the person is a retired police officer or a cooperative citizen licensed to carry a gun. And the court shouldn't second-guess the officer's split-second judgment that the defendant lied when he denied having a weapon, where he obviously had a knife. And knives are dangerous even from 6 feet and guns certainly are. And the officer shouldn't have to ask a person to remove his hand from his pocket before frisking.

U.S. v. Hunt, 2012 WL 936202 (3/21/12) (Okl.) (Published) - The 10th answers the question left open in U.S. v. Hernandez, 655 F.3d 1193 (10th Cir. 2011): a d. ct. may impose a term of imprisonment up to the max established by § 3583(e)(3) each time the defendant violates. There is no aggregation of prior revocation prison terms. The language in § 3583(e)(3) allowing a court to require the defendant to serve in prison "all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release" does not require aggregation by its plain language. The 10th follows the reasoning of U.S. v. Hampton, 633 F.3d 334 (5th Cir. 2011). § 3583(h) prevents indefinite revocation sentencing by calling for aggregating of prison terms in determining how long a supervised release term the d. ct. can impose. Of course, if the defendant receives a life-time term, there could be a problem.

U.S. v. Irvin, 2012 WL 974887 (3/22/12) (Kan.) (Published) - Doubtless you're thinking: "wasn't this case already reported on August 31, 2011?" The answer is: "yes it was, but the 10th granted a rehearing petition.' Not to help the defendant in any way, but to clarify the law on adopted business records. Originally the panel ruled the 10th had already held in U.S. v. Carranco, 551 F.3d 1197 (10th Cir. 1977), that a record prepared by one company and adopted into the records of the witness's company satisfies the business records hearsay exception. But now the 10th holds the government is wrong to suggest that's what Carranco stands for. The Carranco court merely assumed there was such a thing as an adoptive business record exception. But any error in admitting the evidence was harmless error,

Tuesday, March 20, 2012

U.S. v. Antonio-Agusta, 2012 WL 718872 (3/7/12) (Col.) (Published) - Another modified categorical approach case, this time in the § 2L1.2 context. In this case, the indictment charged a crime of violence---Arizona aggravated assault with a knife---but the defendant pleaded to an amended indictment. Under Arizona law, a charging document is reliable evidence of the elements of a prior conviction only if it is incorporated by reference in the judgment. Here the judgment said the defendant was convicted of "Counts 1-3 Amended Aggravated Assault." The judgment incorporated the indictment by referring to "Counts" and the word "amended" referred to the plea agreement, which indicated the indictment was amended to delete the allegation of dangerousness, which would have subjected the defendant to an enhancement under state law. The 10th insists the offense itself was not amended, only the dangerousness allegation. So the defendant was convicted of a crime of violence.

U.S. v. Haymond, 2012 WL 698376 (3/6/12) (Okl.) (Published) - There was sufficient evidence the defendant knew of and controlled the child porn images in an unallocated space on his computer. The jury could reasonably conclude from the evidence that he exclusively used Lime Wire to search for and download child porn images. The jury could disbelieve the defendant's claims that he inadvertently downloaded porn from LimeWire while trying to obtain music, especially when he admitted to being addicted to child porn. Downloading from LimeWire does not occur automatically, but instead requires the user to highlight file names and to press "enter." These facts distinguish this case from U.S. v. Dobss, 629 F.3d 1199 (10th Cir. 2011), where the images were found in an internet cache that could have been automatically downloaded from a website. There was also sufficient evidence the defendant knew the ages of the children in the images because he used search terms associated with child porn. And there was sufficient evidence the images were from out-of-state because the photos were part of a series originally taken in Florida, not Oklahoma. The information in the search warrant affidavit was not too stale when it was 107 days old, because child porn images are likely to be hoarded. Any error in admitting expert testimony of a pediatrician about the ages of the children in the photos was harmless where an agent testified he talked to the children and their parents and the jury could tell themselves from the images that the children, who were 12 to 14 , were not 18.

Mwangi v. Terry, 2012 WL 718955 (3/7/12) (N.M.) (unpub'd) - The 10th holds a d. ct. has no jurisdiction to review the AG's discretionary decision to deny bond or set a too-high bond for a detainee awaiting a BIA decision as to his removability. The circumstances are different than in Zadvydas v. Davis, 533 U.S. 678 (2001), where the alien was detained indefinitely after a final order of removal and removal was no longer reasonably foreseeable.

U.S. v. Hunter, 2012 WL 718860 (3/7/12) (Col.) (unpub'd) - The 10th applies plain error review to sentencing issues. In this case, the transcript indicates the district court announced it sentence and then declared a recess without soliciting comments from counsel. The 10th notes the record isn't clear whether the court paused before declaring a recess. But, in any event, objections to the sentencing error were not preserved because counsel did not ask the court to reopen the hearing to make a record for objections. "Competent professionals do not require gratuitous superintendence," such as a request for comments. Counsel did not preserve an objection to the failure to state written reasons for the upward variance in the judgment because counsel did not file a Rule 35(a) motion. Counsel had four whole days to do so from the time the written judgment was entered 10 days after oral sentencing. [The d. ct. would have had only 4 days to respond or lose jurisdiction]. The failure to give written reasons for the upward variance was plain error, but the defendant didn't meet the 3rd prong plain-error requirement that he show the act of writing down the reasons would have led to a reduced sentence. An above-range sentence was okay even though this was the first revocation of the defendant's supervised release. The defendant could not show "nationwide disparity" by comparing the defendant's case to only two others. On the bright side, the supervised release condition that the defendant must obtain employment did not restrict him from pursuing self-employment.

U.S. v. Andrade-Vargas, 2012 WL 689177 (3/5/12) (Ut.) (unpub'd) - A firearm's proximity and potential to facilitate a drug offense may be sufficient to prevent application of the safety valve provision, including when the mere propinquity of the weapons and drugs suggests a connection between the two. While an enhancement for possessing a firearm under § 2D1.1(b)(1) does not automatically disqualify a defendant from the safety valve, a defendant need not have actual physical possession of a firearm to be disqualified. U.S. v. Zavalza-Rodriguez, 379 F.3d 1182 (10th Cir. 2004) is distinguishable because in that case it was a co-conspirator that possessed the gun, not the defendant.

U.S. v. Huggins, 2012 WL 753652 (3/9/12) (Kan.) (unpub'd) - The attempted battery of a correctional officer is a violent felony under the ACCA because of its dangerousness, in accordance with the 10th's decision in U.S. v. Smith, 652 F.3d 1244 (10th Cir. 2011) that assault of a juvenile affairs employee was a violent felony. Under Antonio-Agusta (see above),the plea colloquy indicates the amendment of the charge to attempted battery from battery was the only amendment made to the charge.

U.S. v. Carvin, 2012 WL 745609 (3/8/12) (Kan.) (unpub'd) - Although a jury acquitted the defendant of being a felon-in-possession, it was okay for the d. ct. to revoke the defendant's supervised release based on a finding that he possessed a firearm. That finding entirely depended on the d. ct. finding credible a witness the jury had not believed beyond a reasonable doubt. The standards of proof were different. Another cautionary tale for appellate types. The d. ct.'s error couldn't be plain where appellate counsel characterized the d. ct.'s statements as "appearing to indicate" error. It wasn't "plain" that the d. ct. thought it had to impose all of the supervised release term it imposed when it subtracted the prison term it imposed from the maximum amount of supervised release term authorized by statute, [if no prison term had been imposed], to determine how much supervised release to impose.

Escamilla v. Holder, 2012 WL 70162 (3/9/12) (unpub'd) - This opinion contains some possibly helpful information if you have a client from El Salvador. The 10th notes that "gang violence seems to touch nearly everyone" there. This didn't stop the 10th from denying the petition for review because, among other things, the violence the alien had suffered and would suffer upon removal was not, and would not be, based on the alien's political opinion.

Gregor v. Franklin, 2012 WL 724284 (3/7/12) (Okl.) (unpub'd) - Three different reasons to affirm the habeas denial re: Crawford. Judge Kelly felt the state court could reasonably conclude the co-defendant's statement to police indicating he was with the petitioner around the time the attempted theft occurred was not testimonial. Judge Hartz felt the evidence violated Crawford, but was harmless. Judge Holmes found the statement was testimonial but did not violate Crawford because it was not admitted for its truth but to show they were made and they were inconsistent. Judge Holmes explained statements can be testimonial even if they don't directly implicate the defendant. It's not the same test as Bruton.

Frreman v. Zavaras, 2012 WL 753651 (3/9/12) (Col.) (unpub'd) - The petitioner could not establish actual innocence to overcome statute-of-limitations problems by showing he was insane at the time of the offense. A successful insanity defense does not establish actual innocence.

Stine v. U.S. Federal BOP, 2012 WL 745607 (3/8/12) (Col.) (unpub'd) - The plaintiff sufficiently alleged imminent danger [from the prison's refusal to give him medication for reflux problems] so as to overcome the 3-strikes ban on his filings. Despite this imminent danger, the d. ct. didn't err in refusing to allow the plaintiff to file due to his failure to comply with the requirement that he set forth information about his prior federal lawsuits, which the plaintiff asserted was impossible to do since BOP takes all funds sent to him because he owes money for prior court fees and restitution.

Green v. Denning, 2012 WL 759958 (3/9/12) (Kan.) (unpub'd) - The disallowance of access to dental floss strands that were longer than six inches was not cruel and unusual punishment.