District Court's Finding that Petitioner Requested Appeal Was Not Clearly Erroneous, But District Court Told to Explain Remedy

Clayton v. Jones, 2012 WL 5691439 (11/16/12) (Okl.) (Published) - The district court's finding that the petitioner requested an appeal, which wasn't pursued, was not clearly erroneous. The petitioner had jail phone and mail records and a pastor's and an attorney's testimony to support him. The 10th, however, reverses the district court's remedy---allowing withdrawal of the guilty plea [which the petitioner says was induced by counsel's promise he would be home for Christmas [counsel didn't say which Christmas]; he ended up with a life sentence]. Such relief might be appropriate under certain circumstances, including being imprisoned for decades without an appeal, [here the petitioner has been in prison for 30 years], but the district court had to explain the reasons for such an unusual remedy. The 10th panel retained jurisdiction pending the explanation.

Officer's Conviction For Impeding Grand Jury Investigation Upheld

U.S. v. Ahrensfield, 2012 WL 5507235 (11/14/12) (N.M.) (Published) - The defendant police officer was charged with letting a car shop owner know about an FBI drug investigation and thus impeding a possible grand jury proceeding. The 10th holds the mid-trial disclosure of evidence did not amount to the suppression of material evidence under Brady. The late disclosure comprised transcripts of conversations between the government's key witness and the FBI. The defendant was able to cross effectively in light of the transcripts and did not explain how that cross would have been different if the transcripts had been disclosed sooner. Using a recording that was provided after trial would not have aided cross. The defendant did not show that, if he had learned information from the transcripts prior to trial and then in light of that information subpoenaed text messages between the witness's wife and the sheriff's wife to show the witness got the information about the investigation from someone else, he would have dug up helpful evidence or that the text messages even would have existed. The suppressed lab report was not material. It only showed there was no test done for crack, not that the substance involved was not crack. That it was crack was supported by an officer's testimony that it looked like crack. And, besides, there may have been a federal grand jury convened even if the substance was not crack.

It was not a violation of double jeopardy to present evidence of the defendant's lies to an FBI agent, even though a jury had acquitted him at the first trial of the charge that he had done so. In this proceeding, the government didn't have to prove beyond a reasonable doubt that he lied. The jury could have reasonably believed he lied and therefore had a guilty conscience. And because the evidence was admissible, the d. ct. did not abuse its discretion when it refused to instruct the jury about the previous jury's acquittal. The evidence was sufficient that it was foreseeable the defendant's conduct would interfere with an official proceeding. The jury heard testimony that an officer told the defendant about the investigation and the next day the defendant told the car shop owner about the investigation and the defendant evidenced a guilty conscience with stealthy behavior. And, based on his officer experience, the defendant would know the investigation had gotten far enough along that it might lead to a grand jury proceeding.

Exhaustion Requirement Applies to Challenges to Tribal Convictions

Valenzuela v. Silversmith, 2012 WL 5507249 (11/14/12) (N.M.) (Published) - Despite the lack of explicit language imposing an exhaustion requirement, the 10th holds that, before a petitioner may challenge a tribal conviction in federal court pursuant to 25 U.S.C. § 1303, a petitioner must exhaust tribal remedies. There are exceptions to that rule where the assertion of tribal jurisdiction is motivated by bad faith, the tribal action is patently violative of jurisdictional prohibitions or exhaustion would be futile. In this case, the petitioner could pursue habeas relief in tribal courts, even though he waived his right to appeal and pursuing the habeas route is not mandatory under tribal law. His lack of counsel and ignorance of the habeas option are not valid excuses.

Unpublished Decisions

U.S. v. Granados, 2012 WL 5507217 (11/14/12) (Okl.) (unpub'd) - An exploration of the public authority defense with an unhappy ending. The 10th declines to rule on whether the official authorizing the illegal conduct must have actual authority to do so, but it hints that it agreed with that proposition. The 10th finds insufficient evidence to warrant a jury instruction on the defense. Troublingly, for its decision it seems to rely on questioning the credibility of the defendant's testimony. The defendant testified another informant told him the informant's officer handlers approved the controlled delivery of cocaine later found in the defendant's car. The 10th finds the defendant's "sometimes vague and contradictory testimony" is not enough to justify an instruction, given the lack of corroborating evidence, the defendant's deceitful behavior during the traffic stop and the testimony of the purported authorizers indicating there was no such authorization.

U.S. v. Young, 2012 WL 5689144 (11/16/12) (Okl.) (unpub'd) - The 10th finds a lifetime of supervised release substantively reasonable for a child porn defendant. The 10th pointed out the defendant had online chats with young boys about meeting for sex. Although the meetings never happened, "he had progressed beyond just viewing porn." The 10th used counsel's sentencing argument for a lower prison sentence against the defendant. Counsel argued supervised release would serve the purposes of sentencing better than prison. The d. ct. thought it was doing the defendant a great favor by giving him so much supervised release: "Supervised release for life is not meant to be punishment, it's meant to be of help to you, the probation office will be available to you for counseling."

U.S. v. Tucker, 2012 WL 5688390 (11/16/12) (Okl.) (unpub'd) - The district court did not abuse its discretion when it refused to sever drug-trafficking charges from felon-in-possession counts, although the charged guns and ammo were found at different times and in different places than when and where the drugs were found. There was plenty of evidence of guilt of the drug charges. So knowing the defendant was a felon wouldn't have prejudiced the defendant. And most of the gun evidence would have been admissible at any separate drug trial as intrinsic to the drug offenses and probative of intent to distribute [but his prior conviction would not have been]. And, even if there was prejudice, it certainly did not outweigh the inconvenience and expense of a separate trial, and the district court instructed the jury to consider all the charges separately.

U.S. v. Dixon, 2012 WL 5507180 (11/14/12) (Kan.) (unpub'd) - No Ineffective Assistance where the defendant alleged counsel failed to warn him about the possibility of an upward departure. The d. ct. departed from about 12 1/2 years to 35 years! But an erroneous sentence estimate does not amount to constitutionally deficient performance.

Arocho v. U.S., 2012 WL 5689253 (11/16/12) (unpub'd) - The 10th looks out for a pro se prisoner. The 10th reverses a district court dismissal due to the plaintiff's failure to comply with an order to submit a certified copy of a current trust account statement to show he couldn't afford to pay $1 towards a filing fee. The prisoner sent in copies of 2 account statements from the previous month. The statements showed he had no money in his account. The 10th held the d. ct. abused its discretion when it dismissed without at least warning the prisoner it would dismiss if he didn't produce more current statements.

Bowie v. Franklin, 2012 WL 5690435 (11/16/12) (Okl.) (unpub'd) - The 10th reverses the district court's denial of relief because it wasn't obvious the petitioner didn't get cheated out of credit for time served on one of his sentences. But the 10th tells the district court to dismiss the case without prejudice for failure to pursue the prison grievance procedures.

Brown v. Roberts, 2012 WL 5507236 (11/14/12) (Kan.) (unpub'd) - Too bad for the petitioner that the d. ct. didn't advise him he should try for a stay and abeyance before getting dismissed to exhaust some of his issues in state court. It is not the proper function of the district court to assume the role of advocate for a pro se litigant.

No Relief for Would-Be Adoptive Parents For State's Removal of Baby Without Notice

Elwell v. Kaufman, 2012 WL 5507251 (11/14/12) (Kan.) (Published) - No relief where the state took a 14-month-old foster baby without notice from a couple who were about to adopt the baby after caring for him for more than a year. By the time the state found there was no grounds for taking the baby, it was too late to take the baby back from another couple. The 10th holds the couple had a liberty interest in their relationship with the baby, given the extended period of their relationship with the baby and the preadoptive status. The 10th holds the taking of the baby without advanced notice when there was no immediate danger to the baby violated due process. But since the law didn't clearly say preadoptive parents had a liberty interest in their foster children, qualified immunity barred relief. The 10th also rules that the state notice procedures for taking a baby did not create a due process right because the statute did not mandate any particular outcome. In concurrence Judge Matheson complains about the majority making the constitutional ruling. He thinks they should have skipped that step because the district court didn't rule on that matter. But the majority thought it would be nice to provide guidance to state officials, instead of letting them continuously avoid liability in circumstances like this case.

Immigration Decisions

Barrera-Quintero v. Holder, 2012 WL 5521836 (11/15/12) (Published) - Troubling immigration decision. The alien entered the U.S. in 1990 and stayed here until 2004 when he was removed. He was not told he could apply for cancellation of removal, which includes a requirement that he be continuously present in this country for 10 years. He returned 66 days later. The government attempted to remove the alien again in 2007. Now with counsel he sought cancellation of removal. The BIA held he did not qualify because he had not been continuously here for 10 years, given his removal in 2004. 8 U.S.C. § 1229b(d)(2) says departures from the U.S. longer than 90 days constitute a break in continuous presence. But BIA has decided it's also a break if an alien leaves under threat of removal proceedings, regardless of how long he's out of the country. The 10th holds this is a reasonable interpretation and so a federal court can't overturn it. "The agency's interpretation need not speak to our highest sense of fair dealing or appear very wise. It only has to be reasonable." Statutes prohibit the 10th from reviewing the BIA's discretionary decision that the alien voluntarily left the U.S. under threat of removal proceedings, despite the failure of immigration officers to inform him of his rights to request removal cancellation. Allowing the ICE agent who was responsible for the alien's removal to testify over the phone did not violate due process. There were good reasons for the agent to do so. The 10th noted it did not "wholeheartedly endorse telephonic testimony as a readily interchangeable substitute for in-person testimony."

Ocampo-Guaderrama v. Holder, 2012 WL 5507114 (11/14/12) (unpub'd) - The 10th finds permissible the BIA's interpretation of "exceptional and extremely unusual hardship,"---a criterion for cancellation of removal--- to mean an alien must provide evidence of harm to a U.S. citizen relative that is substantially beyond what ordinarily would be expected to result from an alien's deportation.

Wu v. Holder, 2012 WL 5507112 (11/14/12) (unpub'd) - The involuntary sterilization of the alien's wife in China would not constitute persecution of the alien unless he was persecuted for resisting his wife's sterilization. So no asylum.

Harper v. Rudek, 2012 WL 5507220 (11/14/12) (Okl.) (unpub'd) - The 10th affirms a dismissal on the grounds that the plaintiff was "maliciously" judge shopping when he filed a letter along with his § 1983 complaints instructing the clerk to dismiss complaints if certain magistrate judges were assigned.

Sentencing Remand Because Defendant Not Allowed Allocution

US v. Castillo, No. 12-2020 (N), 11/15/12 (Unpublished) - Sentence vacated and case remanded for resentencing where government concedes remand to be appropriate remedy for district court’s failure to afford defendant right of allocution. Parties can fully address other sentencing issues raised by defendant on remand, so no need to address them here, especially with poorly-developed record.

"Headlong flight" Supported Seizure

US v. Guardado, No. 11-4169 (Utah), 11/15/12 (Published) - Denial of motion to suppress gun found on defendant after cops tackled him after “headlong flight” affirmed. Cop on patrol sees group of four suspected gang members walking at 1 am in high crime area, where pedestrian traffic is sparse at that time of day and in which a tagging war had been going on among rival gangs. One is wearing a backpack, suggesting he’s carrying tagging equipment (or his textbooks?). Cop decides to talk to them, and backup shows up. One of the group yells “cops” and defendant takes off running, with hand in front, suggesting trying to conceal something or retrieve weapon. Totality of the circumstances justified seizure, measured at the time of the tackle, which is when defendant is deemed seized. Emphasizing that point might be why this otherwise unremarkable opinion got published.

Necessity to Make Offer Of Proof of Excluded Evidence Highlighted

US v. Connor, No. 12-1063 (Colo), 11/15/12 (Published) - Denial of motion to suppress evidence derived from detention based on anonymous tip affirmed. Tipster called 911 around 11 pm and reported having just seen light-skinned black guy wearing fuzzy hunting cap get out of SUV parked in an alley in a high crime area and put handgun in his waistband, right after hearing someone yell “no, no.” Tipster gave address and phone number but not name. Dispatch relays the info to patrol cops, who spot defendant as he is walking away from area and try to cut him off. He turned and started walking into a parking lot. They stop him, pat him down and find gun. Held - tip was reliable enough, with much of it corroborated, to justify suspicion of criminal activity and Terry investigatory stop. Tipster giving name and address made it more likely (s)he was concerned citizen rather than malicious, area and time of day relevant, as was evasive behavior, enough info to suggest defendant had just assaulted someone with the gun, etc.

The takeaway here is a procedural matter. The district court said it didn’t admit exhibits at suppression hearings after defendant tried to introduce a map of the area, so defendant did not offer the 911 tape itself and a transcript of it. He tried to use them on appeal but the court said no. The rules of evidence don’t apply with full force at preliminary hearings to determine admissibility of evidence, but the “procedural regulation of the process of the admission and exclusion remains applicable.” Federal Rule of Evidence 103 requires an offer of proof to preserve issue of exclusion, and none made here. No plain error because exclusion of the tape and transcript did not affect defendant’s substantial rights because he loses anyway.

Unconditional Guilty Plea Waived Challenge to Denial of Dismissal Based on AllegedImmunity Offer

U.S. v. Doe, 2012 WL 5374326 (11/2/12) (Col.) (Published) - The defendant's unconditional guilty plea waived his right to challenge the district court's denial of his motion to dismiss on the grounds that he was offered immunity by an officer recruiting him to act as a CI. This was so because the issue was not jurisdictional or a matter of vindictive prosecution or double jeopardy. In a footnote, this panel noted the recent opinion in U.S. v. De Vaughn, 694 F.3d 1141 (10th Cir. 2012), may have said something that conflicted with the S. Ct.'s decision in U.S. v. Broce, 488 U.S. 563 (1989), when the De Vaughn court held a double jeopardy claim must be evident from the face of the indictment, [as opposed to evident in light of the whole record] to avoid waiver by guilty plea. And, even if there was no waiver, while the officer's encouragement of the defendant to continue as a CI, despite knowing the defendant was participating in illegal activity, was "troublesome," there was no immunity agreement. The guilty plea also waived an outrageous government misconduct claim as well. And, in any event, such a claim could not prevail because the government didn't create crime, but at most induced the extension of criminal activity already occurring.

U.S. v. Griffin, 2012 WL 5374123 (11/2/12) (Col.) (unpub'd) - The 10th upholds a busted stipulation. The plea agreement stipulated that the government could not prove the defendant knew the barrel length of the shotgun was less than 18 inches and that there should be no enhancement under USSG § 2K2.1(a)(5). But the district court enhanced based on an ATF agent's testimony at the plea hearing (?!) that the barrel was too short.

O'Neal v. Newton-Embry, 2012 WL 5359291 (11/1/12) (Okl.) (unpub'd) - It was not a violation of equal protection when the Oklahoma Court of Criminal Appeals ("OCCA") allowed another defendant to withdraw his plea due to his ignorance of Oklahoma's 85%-parole-eligibility rule, but did not allow the petitioner to do the same for the same reason. The 10th relied upon a rationale the OCCA didn't express - the 10th thought the circumstances were different. According to the 10th, unlike the successful defendant, the petitioner did not have a good enough excuse for not raising the 85% rule issue in her motion to withdraw the plea. By then the relevant case had been decided. Curiously though, as grounds for denying the petitioner, the OCCA pointed to a case that was available to the successful defendant a day before he filed his motion. Judge Kelly dissented. He felt the petitioner should not have been expected to raise the 85% rule issue until a more definitive case was decided after she filed her motion. He opined: "Having announced a new rule, Oklahoma must apply it evenly and on a principled basis." Its failure to do so violated equal protection, Judge Kelly believed.

Diaz v. Holder, 2012 WL 5359295 (11/1/12) (unpub'd) - The Guatemalan alien was not eligible for consideration of withholding of removal under the Convention Against Torture. The details of his prior drug-trafficking offense did not qualify his offense for an exception to such offenses being deemed "particularly serious crimes." The $320 involved was not an inconsequential amount of money and the alien's involvement was not peripheral because he introduced the buyer and seller and was present at the transaction. Despite evidence that deportees who speak English and are Americanized face the prospect that Guatemalan gangs, corrupt police officers and drug traffickers will force the deportees to engage in criminal activity or torture them if they refuse, it was okay for the BIA to decide, for deferral of removal purposes, that the alien didn't meet his burden to show he in particular would be in danger of being subjected to torture.

Tenth Avoids Issue of Whether Immigration Detainer Is Sufficient to Deny Bond

U.S. v. Lozoria, 2012 WL 5278600 (10/26/12) (Kan.) (unpub'd) - The ruling here isn't significant, but the background seems interesting. The magistrate judge initially ordered the release of the defendant on bond, despite the existence of an immigration detainer. On appeal to the district court, an ICE agent testified that, if the defendant was released, ICE would take custody of the defendant and remove her from the country. The district court detained the defendant. The defendant argued the government had the power and responsibility under 8 C.F.R. §§ 215.2(a) and 215.3 not to remove her while criminal proceedings were pending. The existence of an ICE detainer, the defendant argued, was an insufficient reason to detain the defendant. The 10th sidestepped "this question of first impression" by affirming based on the district court's alternative rationale that the defendant was a flight risk, a determination the defendant didn't challenge on appeal.

Pretrial Prohibition Against Contact with Girlfriend Upheld

U.S. v. Pickel. 2012 WL 5278597 (10/26/12) (Kan.) (unpub'd) - The 10th affirms a district court's pretrial release prohibition against the defendant having contact with his long-time girlfriend. The district court noted the defendant faced a life sentence, the girlfriend was a witness to the traffic stop during which the drugs were discovered, she probably wouldn't be able to claim a marital privilege not to testify, the defendant and she may have had a falling out and he never asked for her to be his 3rd-party custodian

Possibly "Argumentative" Testimony from Officer Did Not Meet Plain Error Standard

U.S. v. Figueroa-Cruz, 2012 WL 5207479 (10/23/12) (Kan.) (unpub'd) - The 10th indicates an officer's testimony regarding the incriminating import of things he observed during a traffic stop (e.g. nervousness, etc.)"should have been reserved for the prosecutor." That part of the testimony was more like argument. But any error did not meet the prejudice prong of the plain error standard because the prosecutor argued the same points in closing and most or all of the officer's opinions would have been obvious to the jurors.

Habeas Petitioner Allowed to Amend 2255 Motion to Add IAC Claim

U.S. v. Roberts, 2012 WL 5205327 (10/23/12) (Kan.) (unpub'd) - The 10th reverses a 28 USC § 2255 denial and orders the district court to allow an amendment to the § 2255 motion to include an ineffective assistance of counsel claim, which the 10th finds plausible. The 10th ruled this way in part due to documents submitted by the parties that were not before the district court. The documents indicate that maybe counsel should have argued the defendant didn't deserve as many criminal history points as he got because of consolidation of cases. The defendant committed a robbery on May 11. The defendant committed an escape on May 12. On May 18, he was charged by complaint with the robbery. He was sentenced on the escape and robbery on the same day. The government argued the defendant escaped after being arrested for the robbery. But the documents indicated the defendant may have escaped from custody that was due to a theft offense. Consequently, there may not have been an intervening arrest between the robbery and the escape. His guideline range under that scenario would have been 41-51, instead of 51-61.

Silence Did Not Provide Probable Cause to Arrest in Civil Rights Case

Kaufman v. Higgs, 2012 WL 5201355 (10/23/12) (Col.) (Published) - The plaintiff's refusal, during a consensual encounter, to tell officers who was driving his Infiniti when the driver of the car [perhaps his wife or daughter] left the scene of an accident, did not establish probable cause to arrest him for using an "obstacle" against an officer to hinder enforcement of the law. The 10th interpreted the Colorado statute to require more than just silence. The plaintiff did not physically obstruct or threaten to physically obstruct anything. The 10th found it significant that the encounter was consensual, which meant the plaintiff was free to terminate the encounter and certainly to remain silent. The 10th also noted the Fifth Amendment may have protected the plaintiff's statements and he had no legal obligation to respond to the officers' questions. The unambiguous language of the statute and the conclusive interpretation by the state's highest court rendered the officers' constitutional violation clearly established, eliminating the qualified immunity defense.

2012 Guidelines

It's that time. Was it deliberate or coincidence that new guidelines go into effect on Day of the Dead?

A summary of the amendments is available here.

The 2012 Sentencing Guidelines Manual can be downloaded from the Sentencing Commission's website, here.