Smith v. McCord, 2013 WL 601698 (2/18/13) (N.M.) (Published) - The 10th decided sua sponte to publish the case where they affirmed the denial of § 1983 relief for an elderly plainitiff due to what the 10th called "poor lawyering."

Divided Panel Holds Officer Who Tasered Victim in the Head Entitled to Qualified Immunity

Wilson v. City of Lafayette, 2013 WL 518558 (2/13/13) (Col.) (unpub'd) - An officer was entitled to qualified immunity where it was alleged he tasered a man suspected of cultivating marijuana. The suspect was tasered in the head from 10 to 15 feet away after a foot chase and after the suspect reached for his pocket when he was backed against a fence. The suspect died of cardiac arrythmia. The law was not clear that this constituted excessive force because no case in any circuit had held officers used excessive force tasering someone actively resisting arrest, even where the suspected offense was minor, there was little risk of escape and the suspect had not yet physically harmed anyone. Here the suspected offense was a felony and the officer was trained that marijuana growers tend to be armed and ready to use force. There was no evidence how dangerous a taser shot to the head is. "A reasonable officer need not await the glint of steel before taking self-protective action." The 10th did admit this was a "deeply saddening case." Judge Matheson concurred, but noted that to avoid qualified immunity there need not be a case specifically on point where the officer's conduct was "obviously egregious." It was not clear enough to him that the conduct was "obviously egregious." Judge Briscoe dissented. She found it significant that the officer was alleged to have deliberately tasered the suspect in the head from close range and the training manual warned against doing so. Judge Briscoe also thought it was not clear the officer could have reasonably believed the suspect posed an immediate danger, since at worst he was carrying a knife small enough to fit in a pocket. A taser to the back would have sufficed to deflect any danger, she felt.

1983 Complaint Survives Dismissal

Keith v. Koerner, 2013 WL 500703 (2/12/13) (Kan.) (Published) - The plaintiff inmate who became pregnant as the result of a sexual encounter with a prison vocational instructor alleged enough to survive dismissal at the complaint stage. The § 1983 complaint referred to facts in an audit report indicating the warden was aware of multiple incidents of unlawful sexual conduct at the Topeka facility, discipline for such conduct was inconsistent, there was an insufficient use of cameras and there was a lack of training programs tailored to the all-female population. To be liable it was only necessary that the warden have knowledge of a substantial risk to inmates in general, not to a particular inmate in a particular way.

Experts Excluded from Trial

Conroy v. Vilsack, 2013 WL 491546 (2/11/13) (Ut.) (Published) - The 10th's decision about experts in this civil case might be helpful in opposing expert testimony. The 10th upholds exclusion of an expert because she had no specific connection with the relevant particular area of specialization and she did not show the relevant specialization category was "within the reasonable confines" of her established expertise. The 10th upholds the exclusion of another expert because his testimony would not be reliable since his conclusion was based on a misunderstanding of the facts.

Involuntary Manslaughter Instruction Not Warranted

U.S. v. Pluma, 2013 WL 563292 (2/15/13) (Col.) (unpub'd) - The defendant was not entitled to a lesser-included-offense instruction for involuntary manslaughter where he and other inmates beat an inmate to death with padlocks attached to belts. No rational juror could determine the defendant was guilty of only a misdemeanor assault, even if he only hit the victim once. The weapon used was a dangerous weapon, the assault necessarily caused serious bodily injury because it contributed to the death and the defendant aided and abetted a second degree murder even if he individually had only committed a misdemeanor assault.

9-Day-Old Warrant to Search Home for Drugs Was Not Stale

U.S. v. Garcia, 2013 WL 518545 (2/13/13) (N.M.) (Published) - A warrant to search a home for drugs was executed before it became stale, although the CI's information was 12 days old and the warrant 9 days old. People who use or sell drugs usually keep a ready drug stash and other evidence in their house and the warrant affidavit indicated the drug activity was ongoing. The N.M. state warrant's requirement that the officers search "forthwith" is just "a belated echo of a medieval royal command" and so meaningless [except to the Society of Creative Anachronisms]. The search was within the 10-day limit of Rule 41. And, even if there were a violation of the warrant, the defendant couldn't show prejudice or that the violation was intentional so as to warrant relief. And it was okay that the warrant had the wrong address and officers knew that before searching. There was no doubt what residence the judge and the officers intended to be searched, given the photo and description of the house and the knowledge of the officers involved.

District Court Double-Counted Some Crack

U.S. v. Battle, 2013 WL 500643 (2/12/13) (Kan.) (Published) - The d. ct.'s previous finding that a defendant's offense involved at least 1.5 kilograms of crack did not bind the d. ct. to find the offense involved no more than 1.5 kilograms of crack in a subsequent § 3582(c)(2) proceeding. A 1.5 kilogram calculation would give the defendant an offense level of 34, lower than the one ascribed to him in his initial sentencing. But in this case the record did not support the d. ct.'s finding that the defendant was responsible for 3.4 kilograms which had triggered an offense level of 36. The d. ct. added 2 separate PSR calculations of drug quantity involving different co-defendants. Some of the co-defendants in one grouping were suppliers of crack to other co-defendants in the other grouping. So some portion of the drug quantity attributed to one group was part of the drug quantity attributed to the other group. So the d. ct.'s calculation double counted some of the crack. The 10th reaffirms the proposition that a determination of drug quantity should err on the side of caution. The 10th declines to decide whether a d ct. can engage in new fact-finding in a § 3583(c)(2) proceeding.

Tenth Circuit Decisions

U.S. v. Dutton, 2013 WL 440724 (2/6/13) (Kan.) (unpub'd) - A majority (Judges Hartz and Anderson) overturns a suppression denial, applying U.S. v. Gonzales, 399 F.3d 1225 (10th Cir. 2005) to a warrant for the search of a storage unit where nothing in the warrant affidavit connected the defendant to the storage unit. The affidavit said the defendant told an informant that he had a bunch of material to make explosives in his apartment. The affiant said that based on the information he believed the defendant had acquired explosive-related items at his apartment "or possibly in his storage unit." The warrant described the storage unit, but did not say how the officer knew it was the defendant's. The 10th thought there was probable cause to believe the defendant would keep explosives in the storage unit, but the affidavit provided no reason to believe the defendant had a connection to the unit described in the warrant. There was no "minimal nexus," meaning the good faith exception did not apply. The majority decided Gonzales, in which the 10th held the officers did not have a good faith belief the affidavit established probable cause the defendant lived at the place to be searched, controlled. Two of the judges called into question Gonzales' correctness. Judge Anderson very reluctantly concurred. He stressed that the Leon exception applies unless the officer's belief in the existence of probable cause is "entirely unreasonable." Judge Anderson was not sure the Gonzales court sufficiently recognized the high good faith threshold. He believed an explicit link need not be recited and that, after Messerschmidt v. Millender, 132 S. Ct. 1235 (2012), the magistrate's finding of probable cause deserves deference in the good faith determination. Judge Gorsuch dissented. He felt a natural reading of the affidavit indicated the officer's belief that the described storage unit belonged to the defendant. And that was enough for good faith. In his view, Gonzales did not require a different conclusion, given the 10th's resistance to an expansive reading of Gonzales.

U.S. v. Vang Lor, 2013 WL 426672 (2/5/13) (Wyo.) (Published) - An interesting § 2255 situation involving impeachment of an officer testifying at a motion to suppress. The infamous officer Peech conducted a traffic stop and search that lead to the defendant's meth charges. 2 months later the DEA asked the officer to stop a certain vehicle for whatever traffic violation he could find. Officer Peech was afraid he wouldn't be able to make the bust because he had to stop his patrol by midnight due to state cost cuts. So he called the drunk driving hotline and falsely reported the suspect vehicle was driven by a drunk driver. He was then called on duty after midnight to respond to his own false report. Subsequently he testified at the defendant's suppression hearing. The d. ct. believed the officer's testimony that the defendant consented to the search, rather than the defendant's testimony that he did not consent. Then the state investigated Peech and fired him for lying about the drunk driver. In his § 2255, the defendant contended he was entitled to a new suppression hearing in light of this impeachment evidence.
First, the 10th held that the defendant had waived any Brady argument because he, proceeding pro se, only raised that claim in his d. ct. reply. In a footnote, the 10th says it's an open question whether Brady applies to suppression hearings anyway. And it goes on to say there wasn't a Brady violation in any event. Prosecutors don't have a duty to investigate officers' actions in entirely unrelated cases and Peech would not have thought he had a duty to disclose his lie at the time of the defendant's suppression hearing, since his lie was part of an unrelated secret DEA investigation. The government's duty "does not extend to discovering every tidbit of information that is impeachment evidence." Importantly, though, "things may have been different" if the state had begun investigating Peech before the hearing.
Second, the defendant could not get relief based on the 4th Amendment. Stone v. Powell's prohibition against collateral relief for 4th Amendment violations applies to § 2255 unless the defendant did not previously have an opportunity for full and fair litigation. The defendant's lack of access to impeachment of Peech did not deprive him of full and fair litigation. It's not enough that a defendant does not discover potentially relevant evidence until after a suppression hearing. There was no evidence the government covered up the evidence and no deterrence would be accomplished by according the defendant relief. The officer could not have foreseen at the time of the alleged 4th Amendment violation against the defendant that future impeaching evidence might be discovered and damage his credibility at a second post-conviction suppression hearing.

U.S. v. Zendejas, 2013 WL 409745 (2/4/13) (Ut.) (unpub'd) - The prosecutor was entitled to tell the jury defense counsel's blaming someone else for the embezzlement was an attempt to divert attention from the evidence. But it may have been improper to analogize the defense to an enemy army engaged in diversionary tactics and to suggest counsel was trying to mislead the jurors. And the comment that counsel knew his client was guilty unless a certain person's signature was on a bank bag was "also probably improper." But the defendant could not show the comments affected the verdict under the 3rd prong of the plain error test, even though the circumstantial evidence was "perhaps not overwhelming," where the d. ct. told the jury counsel's comments were not evidence and the jury probably understood the prosecutor's comments as just saying the defense's arguments were implausible.

U.S. v. Hopkins, 2013 WL 425980 (2/5/13) (N.M.) (unpub'd) - It was okay for the government to file a levy against money the tax fraud defendants had deposited with the d. ct. as a condition of pretrial release. The d. ct. [Judge Armijo] decided to release the funds, but before they were, the government filed a levy. The levy did not interfere with the defendants' right to choice of counsel because they were making enough money to afford a decent attorney and the levy did not interfere with court proceedings because the court had relinquished custody of the funds. The defendants' complaint was "no more than a reflection of the harsh reality that the quality of a criminal defendant's representation may turn on her ability to retain the best counsel money can buy." The use-of-a-minor enhancement under § 3B1.4 was appropriate where the defendants had their minor children sign the trusts that were part of an attempt to avoid taxes. This was so even if the signatures were unnecessary, the trusts also had a legitimate purpose. and the children did not have power over the trust income. Judge Kelly dissented because he did not feel the signatures facilitated the tax evasion. Use of a minor is required, not just involvement.
It was not error to impose an organizer enhancement under § 3B1.1 on the wife defendant even though she did not have hierarchical control over anyone. She didn't just assist her husband. She organized and managed the trust entities (some of which she created), transferred funds and wrote 90 % of the checks from the accounts. To impose the obstruction of justice enhancement under § 3C1.1 on the husband it was not necessary for the d. ct. to find perjury at trial. The defendant obstructed justice by pre and post-trial activity, such as threatening IRS agents, not paying taxes pursuant to a court order, filing frivolous lawsuits and materially misinforming probation officers. The enhancement was not impermissible double counting even though the offense itself involved obstructive conduct. Efforts to prevent the discovery of tax evasion constituted a distinct harm from obstructing the collection of revenue [that's obvious, right?]. And anyway the defendant's post-trial misrepresentations of his financial situation to the probation office were not part of the offense. The d. ct.'s consideration of the defendant's failure to pay taxes due to a bankruptcy filing did not infringe on the defendant's First Amendment right to petition the government because that right does not protect frivolous claims.

Miller v. Province, 2013 WL 409968 (2/4/13) (Okl.) (unpub'd) - It was "highly improper" for the prosecutor to argue to the jury: "Do you think the State prosecutes people who don't abuse their children?" It clearly insinuated personal knowledge of the petitioner's guilt. But it was reasonable for the Oklahoma appellate court to find the remark did not deprive the petitioner of a fair trial and that the petitioner was not prejudiced by counsel's failure to object to it.

U. S. v. Smith, 2013 WL 471099 (2/8/13) (Col.) (unpub'd) - The defendant tolled the time for appealing the denial of § 3582(c)(2) relief by filing a motion for reconsideration within 14 days after entry of the challenged order.

Horton v. Martin, 2013 WL 410701 (2/4/13) (Okl.) (unpub'd) - It was reasonable for the Oklahoma appeals court to hold that a prosecutor's attempted impeachment of the petitioner's character witnesses with hearsay police reports did not violate the Confrontation Clause. The questions were just impeachment, not substantive evidence.

U.S. v. Copeland, 2013 WL 410453 (2/4/13) (Okl.) (unpub'd) - The § 2255 motion was time-barred because the defendant should have learned about his arresting officers' indictment for stealing money and selling drugs less than 8 months after the officers' indictment was unsealed. This was so even though the defendant was incarcerated in Arkansas and had no ties to Tulsa where the indictment was the subject of an article in the paper. Apparently prisoners are now expected to subscribe to the newspaper from the area where they were arrested.

Dade v. Sanders, 2013 WL 470748 (2/8/13) (Col.) (unpub'd) - It was okay for BOP to take more than $25 per month from the inmate's account where the d. ct. ordered nominal monthly payments of "not less than $25."

20-year-old, Dismissed Juvenile Adjudication Upheld as ACCA Predicate

U.S. v. Rich, -- F.3d --, 2013 WL 491548 (10th Cir. 2/11/13) (OK) - affirmance of ACCA sentence. Despite entry of a dismissal order in a juvenile delinquency case from twenty years before -- after Mr. Rich had been adjudicated a delinquent for conduct that would have constituted robbery with a dangerous weapon if committed by an adult -- the adjudication was properly used as a predicate prior violent felony for ACCA purposes. The state court's order of "dismissal" did not constitute expungement or setting aside of the conviction for ACCA purposes. It merely meant the court was terminating its jurisdiction. The ACCA defines a conviction to include a finding that a person has committed an act of juvenile delinquency involving a violent felony. It did not violate substantive due process to use a 20-year old delinquency adjudication as a predicate offense.

Relief Denied to Capital Habeas Defendant

Wilson v. Trammell, -- F.3d --, 2013 WL 494160 (10th Cir. 2/11/13) (OK) - affirmance of denial of relief in OK death penalty case previously remanded for an evidentiary hearing on penalty phase IAC claims. The COA decides Wilson failed to establish prejudice from counsel's alleged deficiencies. He did not show that the outcome would have been different if counsel had presented mitigation evidence from family members re: defendant's ongoing exposure to gang violence or if counsel had better developed expert testimony re: mental health. There was no showing that additional mental health testing and interviews, better preparation of the mental health expert, or additional testimony from him would have undercut the prosecution's success at characterizing Wilson as a psychopath or helped the jury understand why he was involved in the murder.

District Court Did Not Err In Denying Severance Motion

U.S. v. Ramsey, 2013 WL 491537 (10th Cir. 2/11/13) (Kan.) (unpub.) - the district court did not err by denying severance in a heroin conspiracy trial. Although Ramsey was a low-level member of the conspiracy, overt acts in furtherance of a conspiracy are admissible against all co-conspirators. A limiting instruction was given and the jury verdicts indicated the jury was able to compartmentalize the evidence against the defendants. There was sufficient evidence of possession of heroin with intent to distribute.

Court Committed No Error At Revocation Hearing

U.S. v. Ruby, 2013 WL 323216 (1/29/13) (Col.) (Published) - Rule 32.1(b)(2)(C), which requires that at a supervised release revocation hearing the defendant be given "an opportunity to question any adverse witness unless the court determines that the interest of justice does not require the witness to appear," applies only to the revocation guilt determination, not the revocation sentencing. This conclusion conflicts with a 3rd Circuit decision. The 10th saw no reason to treat hearsay differently at revocation sentencings than it's treated at initial sentencings. In this case, the defendant admitted a violation, but questioned the seriousness of his conduct. A state jury had found him guilty of assault for throwing his girlfriend to the ground, but acquitted him of the girlfriend's charges that he committed a much more brutal assault. The district court adopted the girlfriend's version and denied the defendant's variance request. The violation report repeating the hearsay of a police statement detailing witnesses' accounts was reliable enough for the district court to rely on. There were corroborating statements directly to a police officer by 3 "relatively" neutral people. It was also okay for the district court to consider the defendant's punching of the girlfriend 6 years before his violation. Evidence Rule 404(a) is not strictly applicable and the prior incident just helped "establish another piece of the minimal indicia of reliability necessary to consider hearsay at sentencing." Of course, the acquittal means "little" because the burdens are different at trial and at sentencing.

On the preservation front, the 10th reviewed for plain error, [but found there was no error, plain or otherwise] where counsel complained: "we are hamstrung where the facts are basically decided by a probable cause statement with no safeguards against that, no testimony, no things like that." This apparent hearsay objection did not preserve the issues because counsel didn't mention Rule 32.1(b)(2)(C) or make a "specific" hearsay challenge. Nor did the defendant attempt to show the evidence was flawed through any testimony or the police report, which was not introduced into evidence.

A Cautionary Tale of Too Little Record on Appeal

U.S. v. Brody, 2013 WL 363021 (1/29/13) (Ut.) (Published) - The defendant loses any chance on appeal because his attorney did not provide enough of the record. In this non-CJA appeal, the attorney ordered a small part of the record because the plan was just to appeal the sentence and not pay for the entire trial transcript. But the attorney found out the government ordered the trial transcript on its own. So the defendant hoped to use the trial transcripts as part of the appendix and raise trial issues. Unfortunately the transcripts were not ready by the time the defendant had to file the opening brief. The 10th refused to allow more time for the brief or for the filling of an expanded appendix. The government didn't file a supplemental appendix. The 10th couldn't review the evidence sufficiency issue without a complete trial transcript. The 10th couldn't interpret the prosecutor's allegedly improper comment during closing argument without the context provided by the trial transcript. The defendant waived the statute of limitations claim because he provided no proof he raised that affirmative defense before the district court. The 10th couldn't just accept counsel's word for it.

The 10th says the challenge to the sentence length is moot because the defendant finished the sentence. It could not shorten the supervised release term by declaring the prison sentence too long. It didn't matter that the defendant was now incarcerated for violating his supervised release term. The 10th doesn't discuss its precedent that says an issue of prison term length would not be moot if the district court on remand could reduce the supervised release term. And, in any event, without the sentencing hearing transcript and presentence report, the 10th couldn't tell much about the propriety of the sentence.

Guideline "Clutter"?

U.S. v. Ray, 2013 WL 386424 (2/1/13) (Kan.) (Published) - In response to a rehearing petition, the 10th adds a couple of pages of reasoning to support its prior decision that a child porn defendant need not be computer-savvy enough to know that s/he is distributing porn by virtue of a file-sharing program to get the enhancement for distributing child porn under § 2G2.2(b)(3)(F). The 10th found unpersuasive the defendant's argument that a 2-level reduction under § 2G2.2(b)(1) was warranted in light of the Commission's reason for providing for the reduction: "individuals convicted of receipt of child porn with no intent to distribute will receive the reduction." The 10th explains: "that language cannot be taken as a precise formulation of the Guidelines. It is true in general, but not when the defendant actually distributed child porn (albeit unintentionally). Perhaps it would have been better if the Commission had included all the necessary qualifications to each of its sentences. But such detail can detract from the purpose of stating the general rule without too much clutter." It's merely "an instance of the inexactness of expression of thought commonly (if not inevitably) found in summary explanations of technical language." So the next time you're up against unhelpful guideline language just describe it as "clutter" and you should be home free.

18 U.S.C. § 1546(a) Held to Be Aggravated Felony

Adewuyu v. Holder, 2013 WL 310205 (1/28/13) (unpub'd) - A conviction for violating 18 U.S.C. § 1546(a), which prohibits use of a fraudulent document as evidence of authorized stay or employment in the U.S., was for an aggravated felony, even if the underlying facts---possession of a fake driver's license---indicate the defendant should have been convicted of violating 18 U.S.C. § 1546(b), which prohibits using a fraudulent means of identification, which might not be an aggravated felony. A challenge to an alien's criminal conviction is beyond the scope of removal proceedings. The petitioner did not qualify for the exception from aggravated felony treatment where the alien shows he committed the offense to assist a spouse, child or parent in violating a provision of the immigration law. Here the alien only used the ID to get a job to financially support his family, not to violate the immigration law. So, an alien is better off using a fake ID to help a family member illegally enter the country rather than using it to prevent a family member from starving.

10-Year Delay in Prosecution Not Violative of Due Process

Garrison v. Workman, 2013 WL 386627 (2/1/13) (Okl.) (unpub'd) - It was reasonable for the state court to hold a 10-year delay in prosecution did not violate due process where the delay was for investigative purposes not to gain a tactical advantage.

Certificate of Appealability Improvidently Granted, Court Says

U.S. v. Trinkle, 2013 WL 363480 (1/31/13) (Kan.) (unpub'd) - For the first time in memory, the 10th finds the d. ct. was wrong to grant a certificate of appealability (COA). A COA could not be granted for this § 2255 motion because a COA only issues when the applicant makes a substantial showing of the denial of a constitutional right. The defendant here only showed the d.ct. at worst had made a guideline error in considering a prior offense as a crime of violence for career offender purposes.

Bad Lawyering Harms Civil Rights Plaintiff

Smith v. McCord, 2013 WL 323218 (1/29/13) (N. M.) (unpub'd) - The 10th bemoans the fact that it has to affirm the dismissal of a civil rights complaint due to "an unfortunate tale of poor lawyering." According to the plaintiff, when he went out to his front lawn to find out why officers and EMTs were there, an officer knocked him down and "thrust" him into a police car. But in responding to the defendants' qualified immunity claim, the plaintiff's attorney did not try to meet the burden of showing the violation of a clearly established constitutional right. The plaintiff was bound by his lawyer's inaction.