No abuse of discretion when dismissing counts without prejudice for Speedy Trial Act violations

U.S. v. Smith, 2013 WL 285548 (1/25/13) (Okl.) (Published) - The district court did not abuse its discretion when, under the Speedy Trial Act, it dismissed 4 counts of the indictment without prejudice, rather than with prejudice, where the defendant had been convicted of one count and the jury couldn't decide on the other 4 counts. The wire fraud and money laundering offenses dealing with the usual mortgage fraud were serious offenses. The government did not act in bad faith by intentionally delaying the retrial. The defendant didn't assert his rights until after the violation occurred. The delay caused no cognizable prejudice to the defendant. That the defendant couldn't testify at sentencing regarding the one count for fear of incriminating himself was the result of the dismissal without prejudice, not the delay. Another fraudulent real estate deal was relevant conduct that properly jacked up the offense level. The differences between the schemes did not overcome the commonalities. It was not error to calculate the loss by subtracting the foreclosure sales price from the outstanding balance on the loan.

Robbing a Drug Trafficking Business Violates Hobbs Act Even Though Business is Illegal

U.S. v. Rutland, 2013 WL 221438 (1/22/13) (Wyo.) (Published) - A robbery of a drug trafficking business satisfies the interstate commerce requirement of the Hobbs Act because illegal drug businesses are still businesses. The 10th notes some circuits have adopted a heightened interstate commerce standard when robbery of an individual is involved. But lots of circuits apparently treat criminal organizations, even solo drug dealers, as businesses thus triggering a looser standard. But in this case the standard doesn't matter. The evidence showed the victim was targeted at least in part in his capacity as a drug dealer. While part of the motive may have been to get a gun back that was a friend's, the defendant also wanted to steal drugs and drug proceeds. The robbery depleted the assets of a drug dealer who got his drugs from out of state.

The 10th reaffirmed its strong preference for a pretrial James hearing on the admissibility of co-conspiracy hearsay, but finds no error in the d. ct.'s admission of various statements during trial. The 10th finds there were two overlapping conspiracies, one to rob the drug dealer and the other to deal drugs. The statements were admissible if they were made by a conspirator to further either conspiracy because the robbery was linked to the drug conspiracy. Only one co-conspirator need commit an overt act. A conspirator's statement that he was going to get his gun from the victim was admissible as res gestae evidence to show how the conspiracy began and thus was not hearsay. To top it all off, many of the statements were made by people who testified at trial - the 10th has said any error in admitting co-conspirator statements is harmless when the declarant is subject to cross examination at trial.

Unpublished Decisions

U.S. v. Gonzales-Calzadillas, 2013 WL 264553 (1/24/13) (Col.) (unpub'd) - Just a surprising fact that the probation office recommended a downward variance from 57 to 71 months to 36 months because the reentry defendant had never served a prison sentence. That sentence was reasonable, according to the 10th.

U.S. v. Sebreros-Castro, 2013 WL 288556 (1/26/13) (Ut.) (unpub'd) - As a result of Utah's inflexible electronic warrant system, an officer ended up producing a warrant "to search the defendant's residence for an arrest warrant." Since the warrant was most reasonably read as an arrest warrant mistakenly formatted in a search warrant template, the 10th ruled the officer legally entered the defendant's residence to arrest him pursuant to the warrant.

Prisoners' Claims Rejected

Stine v. U.S. Federal Bureau of Prisons, 2013 WL 238862 (1/13/13) (Col.) (unpub'd) - At the summary judgment stage, the district court was wrong to consider as inadmissible hearsay inmates' affidavits about the plaintiff's requests for grievance forms and the officers' response to those requests. They were submitted to show the exchanges happened, not for the truth of what was said. But what the inmates had to say didn't excuse the plaintiff from pursuing his administrative remedies.

Archuleta v. Nanney, 2013 WL 221429 (1/22/13) (Col.) (unpub'd) - The jury found that a prison guard used excessive force, but there's no relief because the jury also found the prisoner had not exhausted his administrative remedies, which is fine with the 10th and Congress.

Lamar v. Boyd, 2013 WL 238855 (1/23/13) (Col.) (unpub'd) - A prison doctor's statement when dealing with the plaintiff inmate's back problems that "it's not like you broke your back" did not establish the deliberate indifference necessary to prove a cruel and unusual claim. "While such a comment may be unnecessary, or even unhelpful, it does not demonstrate the 'extraordinary degree of neglect' required to assert an 8th Amendment violation," says the 10th.

Phillips v. Tiona, 2013 WL 239891 (1/23/13) (Col.) (unpub'd) - The Americans with Disabilities Act ("ADA") does not apply to private prison corporations, like CCA. The ADA applies to "any department, agency, special purpose district, or other instrumentality of a state." The CCA is just a "parallel private entity." Under the construction principle of noscitur a sociis, "instrumentality of the state" refers to a traditional government unit or one created by a government unit. To sooth possible complainers about this result, the 10th points out there are ways in which the CCA is worse off than state-run prisons. The 10th does note the CCA is the 5th largest corrections system in the nation behind only the feds and 3 states. It houses more than 80,000 inmates.

U.S. v. Combe, 2013 WL 238832 (1/23/13) (Ut.) (unpub'd) - It was okay for the district court to turn down a defendant's post-sentencing offer to accept an 11-month prison term, instead of the 6-month prison term the court imposed, in exchange for eliminating the 3-year supervised release term the court also imposed.

Unpublished Decisions

U.S. v. Cox, 2012 WL 6062664 (12/7/12) (Ut.( (unpub'd) - Another cautionary tale re: what defense counsel might be construed to concede. The d. ct. imposed a stolen gun enhancement based on the following facts: (a) the 9mm Glock found in the defendant's possession in 2010 was bought by Dennis White in 1999: (2) a police report indicated a 9mm Glock was stolen from Mr. White's son's home in 2006; (3) the defendant stated that in 2003 he got the gun from a stranger who told him it was probably stolen, which the 10th characterizes as an "unconvincing account," supporting the inference the gun was stolen; and (4) counsel supposedly conceded that Mr. White gave his son the Glock the defendant possessed. The 10th relied heavily on its interpretation of counsel's statements to the d. ct., concluding counsel was conceding the transfer of the particular gun, rather than simply not disputing it. The 10th then pontificates on the notion that "the reasonableness of a permissive inference is not based solely on deductive reasoning." It's okay to infer based on a reasonable probability that something is true. Judge Holloway dissents. He determined counsel only conceded Mr. White transferred a gun, not the gun, to his son. The evidence, Judge Holloway concluded, didn't prove the gun stolen from the son was the same gun the defendant possessed. The son could have had a different Glock stolen. The 10th improperly judged the credibility of the defendant's account of his acquisition of the gun where the d. ct. made no credibility finding on the matter.

U.S. v. Race, 2012 WL 6119886 (12/11/12) (Col.) (unpub'd) - The d. ct. erred when it admitted the defendant's statement regarding his prior drug activity on the grounds that Rule 404(b) doesn't apply to a defendant's statements. Rule 404(b) does apply to a defendant's statements. But the error was harmless in light of other substantial evidence of guilt. The standard of review for mistrial denials for improper government questions and mistrial denials for improper witness statements is the same. An officer's response that he drew his gun on the defendant because he recognized him did not warrant a mistrial, given the instruction to the jury to disregard the question and answer.

U.S. v. Torres, 2012 WL 6200395 (12/13/12) (Col.) (unpub'd) - In a reentry case in Colorado the government agreed to an appeal waiver that allowed the defendant to appeal if his offense level was determined to be greater than 17.

U.S. v. Chatburn, 2012 WL 6119136 (12/11/12) (Col.) (unpub'd) - Because the circuit courts are divided on the issue, the d. ct. did not "plainly" err when it considered the seriousness of the underlying offense when it sentenced the defendant for violating supervised release. 18 U.S.C. § 3583(e) omits that factor from the factors a d. ct. is supposed to consider when sentencing upon revocation of supervised release.

Monarque v. Garcia, 2012 WL 6177010 (12/12/12) (N.M.) (unpub'd) - There was sufficient evidence that Rio Rancho police officers used excessive force when they restrained the suspect by getting on top of him while he was face down for 2 to 3 minutes applying "some type of pressure." This was so even if the officers were attempting to carry out a community caretaker function to get the suspect some mental health assistance. The suspect passed out and died at the hospital.

Capital Habeas Petitioner Granted Evidentiary Hearing on IAC Claim

Littlejohn v. Trammell, -- F.3d --, 2013 WL 64372 (10th Cir. 1/7/13) (Okla.) - In an Oklahoma state death penalty case, the Tenth reverses the district court's denial of habeas relief on Littlejohn's Ineffective Assistance of Counsel (IAC) claim and directs the district court to conduct an evidentiary hearing and to reconsider the merits of his IAC and cumulative error claims. He contends that his counsel on resentencing failed to adequately investigate evidence of organic brain damage. The Tenth finds there were patent red flags pointing to a possible physiological explanation for Littlejohn's violent and anti-social behavior and such evidence can be of considerable importance to a capital sentencing jury. There is a reasonable probability that such evidence would have led at least one juror to support a sentence less than death. The facts alleged would, if true, entitle Littlejohn to relief. Because the state court did not adjudicate the IAC claim on the merits, a federal evidentiary hearing could properly be used to develop the factual basis for his claim. The State did not argue that Mr. Littlejohn failed to exercise diligence in seeking previously to develop the factual basis for his claim. His request for an evidentiary hearing meets the less rigorous pre-AEDPA standard.