Denial of Competency Hearing Not An Abuse of Discretion; Drug Convictions Affirmed

U.S. v. Patterson, 2013 WL 1365720 (4/5/13) (Kan.) (Published) - The d. ct. did not abuse its discretion when it denied the defense attorney's request for a competency hearing [regarding the defendant's competence, not the attorney's]. The allegation in d.ct. that the defendant had trouble paying attention for long periods of time and had been diagnosed with Attention Deficit Disorder and the allegation on appeal that the defendant had Asperger's Syndrome or Obsessive Compulsive Disorder [I'm glad to see appellate attorneys may now diagnose mental illness] did not require a hearing. The d. ct. based its decision on its observations of the defendant, the successful treatment of the defendant's ADD and the defendant's pro se motion (which was not as good as a lawyer would file, but showed understanding of the issues). Incompetence allegations and OS or OCD are not enough to mandate a hearing.

The d. ct. did not clearly err when it found the coded exchanges in wiretapped conversations established the defendant was involved in a drug conspiracy that was more than just a buyer-seller relationship so that co-conspirator statements were admissible pursuant to the co-conspirator hearsay exception. Those conversations plus co-conspirator and jail-inmate testimony were sufficient to prove guilt of conspiracy beyond a reasonable doubt. The admission of the co-conspirator statements did not violate Bruton or Crawford. The statements were non-testimonial. There was also no Confrontation Clause issue with the admission of cell phone records pursuant to the business record hearsay exception. The trial judge's statement to the jury that he would be out of town the next week and, if the verdict wasn't reached, another judge would have to take the verdict, did not amount to undue coercion. The judge gave the jurors a choice of whether they wanted to deliberate on a Friday evening or come back on Monday. They voluntarily chose to keep going on Friday. The indictment sufficiently notified the defendant of the charges even though 2 of the conspiracy charges stated the start date was unknown. And it protected the defendant against double jeopardy concerns, given the specificity with which the government identified at trial the conspiracy members and goals.

The 10th refuses to consider a paragraph-long argument which incorporated by reference the argument before the district court. Such argument circumvents the word limits and complicates the task of appellate judges.

In CP case, Court Clarifies Possession is a Lesser-included Offense of Receipt, Limits Victim's Damages to those Proximately Caused By Defendant

U.S. v. Benoit, 2013 WL 1298154 (4/3/13) (Okl.) (Published) - A couple of favorable defense decisions in a child porn case that saves the defendant some money, but the receipt conviction and prison sentence are affirmed. The child porn possession offense was a lesser-included offense of the child porn receipt offense. One can't knowingly receive without also knowingly possessing, [although one could possibly unknowingly receive and then knowingly continue to possess].. There was no clear indication of congressional intent to punish the offenses separately. The offenses involved the same "visual depictions" because the indictment alleged the same dates for each offense, both counsel stated to the jury they involved the same pictures and the instructions didn't refer to different pictures. The fine distinctions the government drew on appeal with respect to the evidence of the dates the images were created don't matter. The jury was never alerted to those distinctions. So the d. ct. must vacate one of the convictions.

The 10th adopts the majority view on restitution in child porn cases. Vicky is entitled only to damages that the defendant in particular proximately caused. Because proximate cause is such a widely accepted principle, the 10th refused to conclude Congress intended to abrogate it without good reason and there was no good reason. The evidence below was "relatively thin" as to how much of Vicky's losses the defendant was specifically responsible for. The 10th had no issue with the attorney fees award of $5,950, but it wasn't happy with the d. ct. dividing the total losses by the number of restitution judgments Vicky had previously received for a sum of $5,516. The d. ct. had not made a finding that the number of judgments was about equal to the number of end-users or that the defendant caused approximately the same amount of damages as other end-users.

On the bad news side, there was no government search of the defendant's computer when his girlfriend showed an officer child porn on the defendant's computer. The girlfriend asked the officer to come over after she discovered child porn on the defendant's computer when she was paying some bills online. After the officer arrived, the girlfriend's more computer-savvy friend said to the officer: "I can show the porn to you." The officer said "Okay." That response did not transform an otherwise private search into a government intrusion. The officer did not affirmatively encourage, initiate or instigate the private action. The officer had the right to seize the computer under the plain view doctrine after he saw the porn. He had the right to be where he was when he viewed the porn because the girlfriend had the actual authority to invite the officer into the home and office she shared with the defendant.. The officer was in a place where he could plainly view the incriminating evidence. The incriminating character of the evidence was immediately apparent.

The evidence was sufficient to establish an interstate nexus based on evidence the content of the images had been produced in another state. The d.ct. did not clearly err in refusing to accord an acceptance-of-responsibility reduction. It was not enough to get the reduction that that the defendant did not actively assert his innocence. At trial he contested many aspects of the government's case and didn't stipulate to evidence, causing the government much work and expense. The good § 3E1.1 10th Circuit cases, Garcia and Gauvin, don't say the reduction has to be given under the circumstances of those cases, only that the d. ct. did not abuse its discretion in doing so in those cases.

Unpublished Decisions

U.S. v. Moore, 2013 WL 1362759 (4/5/13) (Col.) (unpub'd) - The 10th suggests there is some support for the notion that giving a defendant more time in prison so he would be cared for in prison would violate Tapia. But here the defendant didn't meet the 3rd prong of the plain error standard that the d. ct. would have imposed a lower sentence absent that concern. The d. ct. had other compelling reasons for imposing a life sentence, instead of the guideline sentence of 30 years, on a 66-year-old man.

U.S. v. Rogers, 2013 WL 1365726 (4/5/13) (Kan.) (unpub'd) - The d. ct.'s statement to the defendant who interrupted the d. ct.'s pronouncement of sentence that, if he tried to diminish his role in the offense, "I'm going to find a way to enhance your sentence," did not deprive the defendant of his allocution right so as to warrant reversal under the plain error standard. The d. ct. eventually heard the defendant out and the defendant's point that he wore a mask during the robbery and couldn't be recognized was not mitigating evidence.

Capital Habea Petitioner Denied Relief Despite Apparent Juror Confusion about LWOP

Warner v. Trammell, 2013 WL 1286637 (Okl.) (unpub'd) - Another Oklahoma death penalty decision. One of the aggravating factors for killing the defendant was that he was a continuing threat. The judge instructed that the jury had three choices: death, life without the possibility of parole and life with the possibility of parole. During deliberations the jury asked whether there was "ANY WAY the defendant could get out of prison if he was sentenced to life without parole? EVER?" The judge refused to answer the question, but just referred them to the instructions. Habeas relief would be available if the judge's response threatened to cause the jury to perceive a false choice between death and a limited period of incarceration. The 10th didn't see that happening here even though the Oklahoma appeals court feels juror confusion about parole eligibility persists in Oklahoma and the judge had told the jury when he answers a question by telling them to look at the instructions that could be code for: "the law doesn't allow me to answer." The judge told the jury the instruction answer could mean other things and the jury had 3 choices which indicated one of the choices was life with no possibility of parole. So there was no reasonable likelihood the jurors would interpret the judge's remarks the wrong way, declares the 10th.

Officers Have Qualified Immunity in Case Involving Beating of 64-Year-Old Man

Lord v. Hall, 2013 WL 1297352 (4/2/13) (Col.) (unpub'd) - Officers prevail in this § 1983 suit because they beat up the plaintiff so badly he couldn't remember what happened. Affidavits attesting to the plaintiff's peaceful character were too speculative to refute the officers' version of events. The officers stopped the defendant because his truck was like the truck involved in a convenience store armed robbery. One of the 2 robbers was described as 22 years-old, 5 feet six inches tall. When the plaintiff, who was 64 years old and 6 feet, four inches tall, got out of his truck it was obvious he wasn't that robber. But the officers' suspicions were not dispelled because the plaintiff could have been the other robber. Once the officers saw there was no passenger, that might have eliminated suspicion. But by that time the plaintiff had resisted the officers, according to the officers, who said the plaintiff was uncooperative, refused to stay put against the officers' orders, tried to re-enter his truck and resisted the officers' attempts to control him. This established probable cause that the plaintiff was interfering with an armed robbery investigation. One officer pushed the plaintiff into the back of his truck and took him to the ground and kneed his back. The officers tried to grab both of the plaintiff's arms to handcuff him. They hit him 4 times on the shoulder and head before handcuffing him. A witness saw the officers on top of the plaintiff yelling "where's the gun?" and the plaintiff denying he had a gun and being compliant. The officers did not use excessive force. The crime they were investigating was severe, the plaintiff posed an immediate threat to their safety, according to their accounts, and they reasonably perceived the plaintiff was resisting arrest when he tried to re-enter the truck. The witness came too late to counter the officers' version of what happened before the witness came by. An expert's opinion that the officers should have acted differently was irrelevant. Such 20/20 hindsight opinions don't matter with respect to the perspective of officers making split-second judgments on the scene. "Perhaps the officers could have behaved differently to avoid injuring an innocent man, but qualified immunity allows for all but unreasonable mistakes."

Failure to File Motion Before Trial Dooms GPS Suppression Issue; Sufficient Evidence Supported Gun Convictions

US v. Baker, No. 12-3023 (Kan), 4/11/13 (Published). Cops were investigating a string of armed robberies of retail stores and check-cashing businesses over a two-month period. Surveillance camera footage led cops to believe that a car belonging to defendant’s girlfriend was being used, so they put a GPS tracking device on it. When that linked the car to a just-completed robbery, cops pulled the car over, arrested defendant and an accomplice, and found a loaded .40 caliber Glock and cash from the robbery. The gun had been lawfully purchased by defendant’s girlfriend, who never told defendant where she kept it (spare tire compartment in the trunk), but had told a mutual friend. Defendant did not move to suppress the evidence prior to trial, and raised for the first time the issue of illegal GPS tracking pursuant to Jones, which had been decided after trial, on appeal. Convicted on all counts of robbery, using a firearm in connection with each, and felon in possession.

Held: (1) failure to move to suppress pretrial waived the suppression issue, so there was no plain-error review. Crim Pro Rule 12(b)(3) required the issue to be timely raised before trial. Defendant failed to show good cause for not raising it, because he timely knew all about the GPS tracking. There was no good reason not to raise the issue, even though the Supreme Court had not resolved it, since raising such issues is often done, and the DC Circuit had already resolved it in defendant’s favor in Maynard; (2) evidence sufficient on the gun charges, where defendant had access to the gun at all relevant times, possessed it when arrested, and victims testified that the gun defendant used looked like the Glock.

Unpublished Decisions

Plascencia v. Taylor, 2013 WL 1200284 (3/26/13) (Ut.) (unpub'd) - The 10th affirms a jury verdict for a § 1983 plaintiff. The use of firearms, handcuffs and other forceful techniques generally exceed the scope of an investigative detention and enter the realm of arrest absent the reasonable necessity to use such tactics. Here the officer learned that the plaintiff's cell phone was found in someone else's home where there was no evidence of a burglary. As soon as the officer encountered the plaintiff, the officer handcuffed him without any objectively reasonable safety concern, lifted his arms behind his back and repeatedly struck his legs without any safety concerns and forcibly moved him to a different location without any good reason to do so. Since there was an arrest and no probable cause, there was sufficient evidence of a seizure in violation of the 4th Amendment.

Hernandez v. Grant, 2013 WL 1277024 (3/29/13) (N.M.) (unpub'd) - The 10th affirms Judge Parker's denial of the officers' summary judgment motion in yet another APD escapade. The plaintiff's allegations, if proven, would establish a 4th Amendment violation where: while responding to a report of a residential burglary, officers saw the plaintiff drive by in what they described as a suspicious manner; the plaintiff slowed from 20 mph to 15, looked at an officer and just kept driving; the plaintiff was driving on a route frequently used to access I-40 and was not in the part of the "NW Area Command" area where residential burglaries were a problem; the plaintiff went to his home and stayed there an hour; and the officers effected a felony stop when the plaintiff started to pull out of his garage. Under those facts there was no reasonable suspicion to stop the plaintiff.

Ho v. Michelin North America, Inc., 2013 WL 1277023 (3/29/13) (Kan.) (unpub'd) - This case might be helpful to exclude expert evidence. The district court did not abuse its discretion to exclude expert testimony where the plaintiff did not show how the expert's substantial experience rendered his particular opinion in the case reliable. There was too great an analytical gap between the data and the opinion proffered. The expert's methodology was not reliable. The insistence on rigorous testing was appropriate given that the expert's opinion went against scientific consensus. "Experience is not necessarily a password to admissibility."

Von Hallcy v. Clements, 2013 WL 1223799 (3/27/13) (Col.) (unpub'd) - Shoving, verbal harassment for wearing a knit cap too low and handcuffing of an inmate did not rise to the level of a constitutional violation.

Extent of Conspiracy, Aiding & Abetting Liability Among Issues Addressed in Prison Murder Case

U.S. v. Rosalez, 2013 WL 1277004 (3/29/13) (Col.) (Published) - The 10th stretches conspiracy and aiding and abetting liability very far and substantially restricts Simmons v. U.S., 390 U.S. 377 (1968) [re: use at trial of a defendant's suppression hearing testimony]. Two of the defendants asked [ordered?] other inmates, as part of a gang matter, to beat an inmate so severely that he would need a medical transfer from FCI-Florence. Another defendant acted as the lookout. 4 inmates beat up the victim with padlocks. 2 of them left after a while saying, that was enough. But two others kept up the attack. The victim died. The 3 defendants in this case were jointly tried and convicted of conspiracy to assault an inmate and second degree murder. It was okay for the jury to convict for murder based on either an aiding and abetting or conspiracy theory. The jury instructions were fine. There was no need for the jury to find the defendants intended the result committed by the principals. For aiding and abetting it was enough that the defendants reasonably expected the victim's death and it was enough for conspiracy liability that the consequence could be reasonably foreseen, even if the defendant was unaware certain offenses were going to be committed. Death did not have to be within the scope of the conspiracy. The conspiracy continued until all the inmates stopped beating the victim. Death was reasonably foreseeable, given the number of attackers, their weapons and the severe beating that was anticipated. It was not a constructive amendment of, or a variance from, the indictment that the defendants could be convicted based on a conspiracy theory where the indictment murder count only charged aiding and abetting, not conspiracy. An indictment need not plead the government's theory of liability. The defendants weren't surprised, particularly in light of the assault conspiracy count.

The admission of the suppression hearing testimony of one of the defendants did not violate Simmons. On the bright side, the 10th found the issue preserved by the defendant's objection and the government's response, which distinguished Simmons . But the 10th held Simmons was inapplicable because: in Simmons, the defendant had to testify at the suppression hearing to establish standing, whereas here the defendant didn't have to testify to assert his challenge that his statements to an agent were involuntary; and, unlike in Simmons, the defendant here gave "patently false, evasive and ever-shifting answers to basic questions." [The district court got so mad at the defendant it held the defendant in contempt and ordered him to be held in solitary confinement]. So the defendant was never faced with the Simmons dilemma of surrendering Fifth Amendment rights to pursue Fourth Amendment rights. So something else to worry about when deciding whether your client should testify at the suppression hearing.

The district court violated a defendant's cross-examination rights when it refused to allow the defendant to conduct a redirect examination of a witness presented by a co-defendant. The defendant did not question the witness initially, but the witness said some incriminating things when the government crossed him. But the error was harmless beyond a reasonable doubt. The only unique testimony of the witness was that the victim wanted to be the Surenos leader for the housing unit and asked the witness to side with him rather than the defendant. There was enough other evidence of the animosity between the victim and the defendant so that the witness's testimony wasn't that important to the government.

2241 Petitioner Should Have Tried, Tried Again

Abernathy v. Wandes, --- F.3d ----, 2013 WL 1397270 (10th Cir. 4/8/13) (Colo.) - A difficult habeas decision: the Tenth decides the district court properly dismissed Mr. Abernathy's § 2241 petition for lack of jurisdiction. Mr. Abernathy was convicted in 2001 of felon in possession and sentenced under ACCA. One of his qualifying ACCA convictions was for a "walkaway" escape. Under Chambers v. US, 555 U.S. 122 (2009), an escape conviction for a walkaway is not a violent felony under ACCA. Mr. Abernathy had argued on direct appeal that his walkaway conviction did not qualify under ACCA. He lost. He sought cert and was denied. He filed a § 2255 raising other issues that were denied. Mr. Abernathy maintained that he should be permitted to proceed under § 2241 because the law changed after he was sentenced and he could not get the benefit of the change under § 2255 because Chambers did not create a new rule of constitutional law that the Supreme Court made retroactive. Under the "savings clause" of § 2255(e), a federal prisoner can proceed under § 2241 when the remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." Mr. Abernathy pointed out that under the law-of-the-case doctrine, he was foreclosed from raising his Chambers argument in his initial § 2255 proceeding because he had already raised it on direct appeal and thus he had no adequate or effective remedy under § 2255. Too bad, says the Tenth; he could still have raised the argument and hoped for a Supreme Court cert grant. The COA quotes from its prior Prost decision to the effect that: "The U.S. Reports are, after all, replete with instances where the Supreme Court has rewarded litigants who took the trouble to challenge adverse circuit precedent." The Court also rejects Mr. Abernathy's argument that denying him the opportunity to seek § 2241 relief would effectively suspend his right to seek a writ of habeas corpus in violation of the Constitution's Suspension Clause. ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." US Const. art. I, § 9, cl. 2). That argument was not raised below and because there is a lack of well-settled law on this issue, Mr. Abernathy can't meet the plain error test.

Tenth Rejects Capital Habeas Petitioner's Numerous Claims

Lockett v. Trammell, -- F.3d --, 2013 WL 1286633 (10th Cir. 4/1/13) - another rejection of numerous challenges to an OK death verdict. With respect to the penalty phase: (1) Erroneous exclusion of social worker's testimony, including both evidence and expert opinion re: the effect on Mr. Lockett of his horrible childhood, did not have a substantial and injurious effect on the jury's death verdict. The jury heard ample other testimony linking Mr. Lockett's crimes to his miserable childhood and adolescence. (2) While victim impact testimony, including opinion about the appropriate sentence and characterizations of the crime, violated clearly established Eighth Amendment law, the error did not have a substantial and injurious effect on the verdict and so was harmless. The Tenth points out that OK continues to allow prohibited victim impact testimony despite repeated Tenth Circuit rulings holding it improper. (3) It was reasonable to admit testimony re: future dangerousness from state expert who examined Mr. Lockett with respect to a contemplated, but not utilized, insanity defense; Mr. Lockett put his mental health at issue in the penalty phase. (4) There was sufficient evidence to support the jury's finding that Mr. Lockett created a great risk of death to more than one person. (5) The cumulative effect of the penalty phase errors was not prejudicial.
Mr. Lockett did not receive IAC during the guilt phase by counsel's concession of guilt. The OK analysis of this claim is entitled to AEDPA deference. The evidence of guilt was overwhelming and included a videotaped confession with a detailed description of the crimes.
The COA declines to grant a certificate of appealability on 3 issues on which the district court had declined to grant it. (1) The district court's interviews of 19 jurors outside the defendant's presence during voir dire was not shown to be prejudicial; his counsel was present and the interviews were conducted on the record. (2) Counsel's performance was not shown to be deficient with respect to presentation of mental health evidence. The record supported counsel's decision not to pursue an insanity defense and additional mental health evidence would have been cumulative and would not have affected the verdict. (3) The jury instructions re: weighing aggravating and mitigating circumstances were proper; under Tenth Circuit precedent, the jury was not required to find that aggravating circumstances outweighed mitigating circumstances beyond a reasonable doubt.

Post-Sentencing Guideline Change Does Not Make Defendant's Sentence Retroactively Unreasonable

U.S. v. Gutierrez-Sierra, 2013 WL 1136949 (3/20/13) (Col.) (unpub'd) - The fact that after the defendant's original sentencing the guidelines changed to advise that courts not impose supervised release terms on reentry defendants did not make a consecutive sentence for a supervised release violation substantively unreasonable. Also, the 10th troublingly justifies the district court's failure to address all the defendant's family circumstances on the grounds that the guidelines discourage consideration of such things.

Denial of Crack Resentencing Relief Emphasizes Need to Contest PSR "Facts" at Original Sentencing

U.S. v. Bruner, 2013 WL 1150265 (3/21/13) (Okl.) (unpub'd) - In a 18 USC § 3582(c)(2) proceeding, the district court had the power to make a supplemental drug-quantity calculation that precluded a reduction based on the crack amendments. The district court originally found that the drug quantity involved was between 20 and 35 grams of crack. The uncontested PSR indicated there was one transaction involving 28.8 grams and another for 6.4 grams. If the drug quantity was less than 28 grams the defendant would have been entitled to a reduction in his offense level and thus the guideline range under § 3582(c)(2). The district court found based on the PSR that the quantity was at least 28 grams and so no reduction was allowed. The 10th holds that, given the defendant is considered to have admitted the PSR quantity findings because he didn't contest them originally, the PSR provided a factual basis for the district court to make a supplemental quantity finding. This did not constitute a reopening of the original sentencing. The 10th notes that it is still undecided in the 10th whether a district court can engage in new fact-finding to determine the amended guideline range under § 3582(c)(2).

Defendant's Rule 60(b) Motion Remanded; Government May Need to Explain Itself

U.S. v. Moya-Breton, 2013 WL 1092823 (Ut.) (unpub'd) - The 10th remands for reconsideration of the defendant's Rule 60(b) motion because of his fraud allegation. In his original § 2255 motion the defendant claimed counsel had failed to disclose a plea bargain offered by the government. The district court denied it because the defendant's pleadings indicated his attorney told him there was no plea offer. In his 60(b) motion, the defendant attached a prosecution letter he obtained through a FOIA request. The letter offered his attorney a plea deal. The 10th opines that the letter suggests the need for the government to explain why it did not mention the plea offer in responding to the defendant's original § 2255 motion. The 10th thought it also might be wise to hear from defense counsel why counsel told the defendant the government didn't make an offer. Somebody could be in big trouble.