Tax Conviction Affirmed

U.S. v. Farr, -- F.3d --, 2012 WL 6554748 (10th Cir. 12/17/12) (Okla) - affirmance of conviction of willfully failing to pay a trust fund recovery penalty assessed by the IRS after Ms. Farr failed to fork over quarterly employment taxes owed by the medical clinic she managed. The COA rejects a number of challenges to admission of prior acts evidence under Rule 404(b), concluding that evidence of prior IRS penalties, the various incarnations of the medical clinic under different names and tax ID numbers, Farr's personal bankruptcy, her skimming of cash received by the clinic, and her access to undisclosed income were all relevant to show Farr's willful failure to pay the IRS penalty. There was sufficient evidence to support Farr's conviction, the district court did not err by refusing to dismiss the indictment for failure to properly charge the offense, and the COA declines to consider Farr's double jeopardy claim because it had previously done so in an interlocutory appeal challenging the district court's denial of her motion to dismiss.

Suppression Based on Miranda Violation Upheld

U.S. v. Santistevan, -- F.3d --, 2012 WL 6554750 (10th Cir. 12/17/12) (CO) - the COA affirms the district court's grant of a motion to suppress statements made after invocation of the right to counsel. After Mr. Santistevan turned himself in on unrelated charges, an agent advised him of his Miranda rights and asked to speak with him about some robberies. Mr. Santistevan declined and the interview ended. Six days later, Mr. Santistevan's girlfriend called the agent and told him that Mr. Santistevan wanted to speak with him. On his way to the jail the next morning, the agent received a call from a public defender who said she represented Mr. Santistevan, had spoken with him that morning, and that he did not wish to speak. She also said she had given Mr. Santistevan a letter to give to the agent if he came to the jail. When the agent got to the jail, he asked Mr. Santistevan if he had a letter and Mr. Santistevan handed him the letter from counsel stating Mr. Santistevan did not wish to speak to the agent without counsel. Nonetheless, the agent asked Mr. Santistevan if he wished to speak with him about the robberies without a lawyer present and Mr. Santistevan said he did, then signed a waiver and made incriminating statements about two robberies. The district court held that Mr. Santistevan unambiguously invoked his right to counsel by handing the letter to the agent without disclaiming its contents. At that point, all questioning should have stopped. Notably, the COA states, "The dissent also warns that our holding instructs law enforcement officers on how to get around Miranda by teaching them what questions to ask when they know a defendant has a letter from counsel. We would like to think that law enforcement officers act in good faith."

2255 Claimant Filed Untimely

U.S. v. Peraza, 2012 WL 6062666 (12/7/12) (Okl.) (unpub'd) - The § 2255 movant received an ACCA sentence due to an escape conviction that would not have counted as a predicate conviction under Chambers. Because the movant did not file a § 2255 motion within a year of that decision he was out of luck. His ignorance of the law and insufficient access to that law were not good enough excuses.

Civil Rights Plaintiff's Claims Regarding False Arrest Rejected

Bark v. Chacon, 2012 WL 6033597 (12/5/12) (Col.) (unpub'd) - No § 1983 relief where robbery victims mistakenly identified the car driven by the plaintiff as that of the robber. At 1:25 a.m. 10 officers came to the plaintiff's home, ordered him out of the house, forced him to his knees in snow with his hands behind his back for 10 minutes in 13 degree weather with the plaintiff only wearing pajama bottoms; the plaintiff agreed to talk to officers inside the home; the officers wouldn't let him get up or get any clothes; the plaintiff consented to a search of his home after an officer threatened to impound his vehicles if he didn't consent; in an effort to get a confession an officer falsely claimed witnesses had identified the plaintiff as the culprit; after the officers left an hour-and-a-half later, the plaintiff had a breakdown. The plaintiff gets no relief from particular officers because he could not identify which officer did what or observed what. It was just too bad that it was dark, he was frightened, and only one officer identified himself to him. The officers' presence at the scene and failure to intervene were not enough to avoid summary judgment. The plaintiff couldn't obtain relief from the one officer he could identify where that officer got the plaintiff to agree to allow the officers into his home when the plaintiff's only other choice was remaining outside in pajama bottoms in freezing temperatures. The plaintiff never alleged below that he consented to entry under duress.

Mother Denied Relief for Son's Death in Jail

Coffey v. McKinley County, 2012 WL 6014600 (12/4/12) (N.M.) (unpub'd) - The plaintiff gets no relief where she alleges the McKinley County jail did not give her son medication for his congestive heart failure for 4 months and he died. At some point her son was too ill to get up from bed for 4 or 5 days. This prompted a riot by fellow inmates demanding that the jail help him. Guards had noticed he was very ill, but did nothing until one guard did take him to a medical unit, leading to a trip to the hospital where he died. The inmate's mother couldn't get relief from the guards or nurse because she did not know who they were. She could not get relief from McKinley County because she did not show its failure to adopt a policy of medically evaluating prisoners within 14 days of their arrival was the cause of her son's death. It was not highly predictable that the lack of such a policy would lead to constitutional deprivations.

No Relief for Deportee Despite Deportation Officer's Error

Aguilar-Aguilar v. Napolitano, 2012 WL 5992179 (12/3/12) (Published) - It was wrong for the deportation officer to issue to the alien a notice of intent to remove and an expedited Final Administrative Removal Order at the same time, because the alien did not concede deportability at that time. But this did not constitute a due process violation that would have given the 10th jurisdiction to review the matter. The alien did not now contest that he was a deportable alien with a prior aggravated felony conviction. So he had no liberty interest that due process protected. The alien couldn't get discretionary relief from removal.

Oklahoma Death Sentence Goes Forward

Ochoa v. Trammell, 2012 WL 5995247 (12/3/12) (Okl.) unpub'd) - The 10th gives the go-ahead to another Oklahoma execution, which was carried out Dec. 4th. The fact that the petitioner was beating on his toilet because he believed it was the source of disembodied voices and shocks all over his body was insufficient to meet a threshold showing that he did not comprehend his execution, especially where there was no expert opinion to that effect.

Upward Variance In Accessory-After-The-Fact Case Affirmed

U.S. v. Tillman, 2012 WL 6031815 (12/5/12) (Wyo.) (unpub'd) - The d ct. did not abuse its discretion when it refused to accept an accessory-after-the-fact plea due to a lack of a factual basis where the defendant equivocated as to whether he helped to hide the body of the victim in order to hinder his apprehension or because the body stunk up the house. An 80-month sentence where the guideline range was 51-63 months was okay where the defendant had sex with a 13 year-old girl and the girl's brother (reacting as every caring brother would) choked his sister to death. Alcohol was involved.

Preservation Problems Result in Plain Error Review

U.S. v. Wells, 2012 WL 6031763 (12/5/12) (Ut.) (unpub'd) - A preservation lesson. At the sentencing hearing, defense counsel attempted to explain the state charges against the defendant, but did not object to the court considering them at all. Review with respect to the claim that the court should not have considered the state charges at all is for plain error. While other circuits have held a sentencing court's consideration of dismissed and pending charges is wrong, the 10th has not done so. Any error in that regard was not "plain."

U.S. v. Handy, 2012 WL 6062658 (12/7/12) (Kan.) (unpub'd) - Another preservation lesson. Because the defendant never challenged the prosecutor's characterization of the demeanor of a prospective African-American juror before the d. ct., he could not sustain a Batson claim regarding the government's peremptory challenge of that panel member on demeanor grounds. And it was a proper neutral reason to excuse the panel member because she said she would "have a problem with" the testimony of cooperating witnesses, even though the government didn't excuse a juror who said testimony of such a witness "would make me a little suspect."

6th Amendment jury trial challenge to sentencing procedure rejected

U.S. v. Caiba-Antele, 2012 WL 6062655 (12/7/12) (N.M.) (unpub'd) - The district court rejected a reentry plea agreement because it didn't reflect dropped state sex abuse charges brought against the defendant. The defendant then pleaded guilty without an agreement. At an evidentiary hearing, 2 detectives detailed the interviews they conducted with 3 children who alleged sexual abuse and rape over the course of several years. The detectives testified they found the children credible. The prosecutor testified the charges were dropped due to the risk of psychological harm to the victims and because one victim wanted to get on with her life. The district court found the detectives credible and found that the defendant probably committed the acts of sexual abuse and rape. The judge then calculated what the guideline range would be if the defendant had been convicted of the dropped charges: 46-57 months, instead of the actual range of 8-12 months. The judge imposed 51 months. 10th precedent required the panel to reject the 6th Amendment challenge. The 10th held the evidence upon which the court relied was sufficiently reliable. The detectives had observed the victims first-hand and those victims corroborated each other. This case was distinguishable from U.S. v. Fennell, 65 F.3d 812 (10th Cir. 1995), where the probation officer just talked to the alleged assault victim over the phone and so couldn't view the witness's demeanor.

Upward Variance Affirmed

US v. Green, No. 11-6321 (WD Okla), 12/6/12 (unpublished) - Defendant charged with cocaine and telephone counts made deal to plead guilty to the phone counts only. The agreement stipulated that 99.5 grams of coke would be attributed to him. At the change of plea hearing, defendant seemed to have a lot of trouble understanding that he would not be sentenced for a drug crime, but that the amount of coke would be used to calculate his guidelines range, which turned out to be 92-115 months. That range was not mentioned during the hearing. As for the amount of coke, the court agreed with defendant’s statement that he would be held accountable for 99.5 grams, “no more and no less.” At sentencing, the court varied upward and gave him 130 months.

Defendant appealed the sentence as both procedurally and substantively unreasonable. In the opening brief, counsel also raised he following issue: “Mr. Green was told at plea that his sentence would be 92-115 months, no more, no less.” Bad move. The panel first made short work of the procedural and substantive challenges. It couldn’t figure out just what the procedural challenge was, and found no error. In light of defendant’s apparently extensive criminal record, there was no problem with varying upward 15 months. Turning to the promise issue, the court said, “We expect more candor from members of the bar.” The range was never mentioned during the plea hearing, and “no more, no less” referred only to the stipulated amount of coke. In the reply brief and at oral argument, counsel argued that the real issue was that defendant’s plea was involuntary because he didn’t understand what his sentence could be. Wrong. That issue was waived because not raised in the opening brief, plus neither defendant nor counsel seemed the least bit surprised when the district court varied upward.