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."
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."
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