Unpublished Decisions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.
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.
posted by Anonymous at 9:16 AM
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