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.