Tuesday, May 28, 2013

New Guide Details Steps from A-to-Z for Preserving Biological Evidence

According to a press release, a new handbook by the National Institute of Standards and Technology (NIST) and the Department of Justice’s National Institute of Justice (NIJ) provides forensic laboratories, law enforcement agencies and the judicialsystem with state-of-the-art guidelines and recommended best practices for preserving biological evidence so that it is available at any time to solve “cold cases,” confirm the guilt of criminals or exonerate the innocent.
The press release is here.

The .pdf can be downloaded from a link on the page about the handbook.

Friday, May 17, 2013

Supreme Court

Burnside v. Walters, Cert Granted: 2013 WL 1942413 (5/13/13) - Whether the in forma pauperis statute governing prisoner lawsuits prohibits plaintiffs from amending their complaints. The 6th Circuit said "yes." All other circuits, including the 10th, have said "no." Interestingly, the S. Ct. granted cert without hearing from the other side. The Court offered an opportunity for the defendants to respond, but they did not.

10th Circuit Cases:

U.S. v. Flood, 2013 WL 19112989 (5/9/13) (Ut.) (Published) - A handy case the next time you represent a CEO of a large corporation. There was no conflict of interest adversely affecting counsel's performance where the CEO's attorney fees were paid by the corporation. The corporation did benefit from the defendant's conviction because it gave the corporation the right to restitution and reimbursement for counsel's fees, which amounted to 3 million dollars. But the defendant did not show counsel acted in the corporation's interests and against hers. Counsel respected its duty of loyalty. When it learned the corporation was sharing information it learned by virtue of the Joint Defense Agreement with the government, counsel refused to give the corporation detailed information about its representation of the defendant. Delegating work to co-defendant's counsel helped the defendant, given the financial and temporal constraints in all litigation. Counsel's request to the corporation for money for a mock trial, explaining this could be a way to induce a settlement, did not show counsel was looking out for saving money for the corporation. Rather, counsel were just stating a widely understood fact. The defendant failed to identify a viable defense strategy that would have cast blame on the corporation. The diversion of counsel's resources to litigating to get paid more by the corporation resulted from the corporation's breach of its indemnity agreement with the defendant, not counsel pursuing their own interests. Broadly claiming "ineffective assistance of counsel" in the § 2255 motion did not include non-conflict-of-interest claims where before the d.c t. the defendant only discussed the claims in terms of the conflict standard..

U.S. v. Seybels, 2013 WL 1878841 (5/7/13) (Ut.) (unpub'd) - There was reasonable suspicion to continue to detain a car, even though a drug dog did not alert after sniffing the car. The defendant didn't have registration papers or a title in her name for the car; the defendant didn't know the last name of her traveling companion; and her travel itinerary was implausible [she rushed to buy a car and visit her father for his birthday, but left before his birthday]. The non-alert did not negate reasonable suspicion because the dog was distracted by the defendant's chihuahua. During the continuation of the detention another undistracted dog alerted, creating probable cause to search.

U.S. v. Harris, 2013 WL 1859347 (5/6/13) (N.M.) (unpub'd) - It was okay to admit evidence of the defendant's prior felon-in-possession-of-a-firearm conviction in a prosecution for being a felon in possession of a firearm. It was relevant to whether the defendant knew he possessed the gun that was found five feet from him while he was lying on the ground. A legal objection that a prior conviction was not for a violent felony does not trigger the court's obligation to make findings of fact under Rule 32(i)(3)(B).

U.S. v. Walshe, 2013 WL 1859343 (5/6/13) (Col.) (unpub'd) - The d. ct. correctly excluded the defendant's letter to an IRS agent describing a payment plan. A post-hoc offer to "pay later" was irrelevant to the question whether the defendant intentionally violated a known legal duty to pay taxes. Counsel made an adequate offer of proof when counsel stated the defendant's son would testify his father seemed to have mental health issues that affected the way he made decisions. But the d. ct. did not abuse its discretion in excluding the testimony because the d. ct. reasonably construed the proffered testimony as that of a lay witness regarding a matter requiring special skill and knowledge.

U.S. v. Patterson, 2013 WL 1878254 (5/7/13) (Okl.) (unpub'd) - The defendant did not show his attorney acted deficiently when counsel advised the defendant not to accept the plea offer because the defendant would win the case on the Fourth Amendment issue. As we've all learned, in the context of plea agreements, bad advice alone is insufficient to prove deficient performance. The defendant did not show the advice was "completely unreasonable." The d. ct. did err when it treated issues raised in the § 2255 motion as abandoned when the defendant did not explicitly relinquish them after filing an amended petition without those issues. But no harm done. Those issues were meritless. In particular, counsel was not operating under a conflict of interest that adversely affected counsel's performance due to the defendant owing counsel $20,000.

King v. Patt, 2013 WL 1926344 (5/10/13) (Ut.) (unpub'd) - A good prisoner civil rights case. The plaintiff stated claims for relief where the jail had delayed the prisoner seeing an orthopedist for a broken wrist bone and an opthamologist to treat a detached retina. As a result of the delays, the prisoner's wrist healed in the wrong position causing permanent lack of mobility and pain and he became virtually blind in one eye. The prisoner's placement on work release did not absolve the jail because some of the delay to treat urgent medical problems occurred before the prisoner got work release. A doctor's letter regarding causation was enough to avoid summary judgment. Expert testimony was not necessary.

Monday, May 13, 2013

Unpublished Decision

Smallwood v. Martin, 2013 WL 1846841 (5/3/13) (Okl.) (unpub'd) - A troubling case for habeasphiles, not so much for normal, well-adjusted human beings. The 10th holds a petitioner's state post-conviction petition did not toll the statute of limitations because it raised issues that should have been raised on direct appeal. This seems to contradict Artuz v. Bennett, 531 U.S. 4 (2001), which held that a state petition is "properly filed" and thus tolls the limitations period even if state law procedurally bars it. And the revelation of corruption among Tulsa police officers did not restart the limitations period. The officers' failure to report their own corruption at the time of the defendant's guilty plea did not constitute a Brady violation. And, anyway, the petitioner did not allege officers planted drug evidence in his particular case, like they did ion lots of other cases.

BIA's Denial of Asylum Claim Vacated

Karki v. Holder, 2013 WL 1799994 (4/30/13) (Published) - The 10th vacates the BIA's denial of asylum because the BIA's factual determination that Maoists in Nepal persecuted the alien for money or recruitment rather than for his political opinion was not supported by the evidence. The BIA also erred in finding there was no persecution because there was no physical harm. The threat of death, attempted murder [the alien was the intended target of a lethal car bombing; at the last minute he didn't ride in the car] and seizure of rice fields, constitute persecution, even though the alien wasn't physically harmed. And the BIA was wrong to find the alien hadn't proven Nepalese officials would acquiesce in the alien's torture by Maoists. The alien did not have to show the officials knew about the danger to the alien in particular.

Delay in State Habeas Corpus Process Deprives Petitioner of Federal Remedy

Rawlins v. State of Kansas, 2013 WL 1799992 (4/30/13) (Kan.) (Published) - Those of you enthralled by writ law [and who isn't?] should find this case fascinating. The state post-conviction proceedings took so long [10 years!] the petitioner had finished her sentence by the time she got to federal court to challenge her conviction. The d. ct. had no jurisdiction under § 2254 because she was not "in custody" when she filed her petition. Disabilities resulting from her conviction didn't change this. She sought relief under the writ of audita querela or coram nobis. But no dice. As we all know, the writ of audita querela only applies when unanticipated legal circumstances [like a new S. Ct. case], not unduly harsh collateral consequences, arise post-judgment. That didn't happen here. Coram nobis is an extraordinary remedy, which can be applicable when challenging a federal conviction. But, based on the history of coram nobis in England [a must-read], it is not a writ that one court may issue to another. A court can only issue the writ to itself. Coram nobis does not apply to state judgments, such as the one the petitioner attacked in this case.

Convictions for Prescribing Controlled Substances Without Legitimate Medical Purpose Upheld for Pain Management Doctor

U.S. v. Mackay, 2013 WL 1802147 (4/30/13) (Ut.) (Published) - There was sufficient evidence to support convictions for prescribing controlled substances to patients outside the usual course of medical practice and without a legitimate medical purpose. The jury did not convict the defendant just because his patient charts were not adequate or because of the subjective opinions of an expert. The expert testified there was no legitimate medical basis to prescribe the opioid medications in the quantity and over the time span the defendant prescribed for each indictment patient. The charts revealed early prescription refills, lack of depth in examinations and instances where the defendant did not relay his diagnosis to the patient. The testimony of patients and the receptionist backed up the expert's assessment. It didn't matter if the patients were actually experiencing pain. 10th Circuit case law provided adequate notice the Controlled Substances Act prohibited his conduct. And, in any event, due process does not preclude prosecution of someone for engaging in conduct that had never been prosecuted before. There was sufficient evidence that the death of 1 of the defendant's patients resulted from the defendant's prescriptions for oxycodone and hydrocodone and were reasonably foreseeable. The patient had previously overdosed on methadone the defendant had prescribed. The patient sought an early refill. The defendant knew the patient was getting opiates from another doctor and was on the defendant's do-not-see list and that the patient binged on his medication. The defendant prescribed more oxycodone and hydrocodone than the patient needed. There was testimony the patient took a large amount of the drugs before he died. Contrary to other experts' testimony, one expert, the only toxicologist witness, testified the levels of the drugs found in the body postmortem don't matter. She testified the death would not have occurred absent the hyrdocodone and the oxycodone. The 10th finds from this evidence the jury could find the oxycodone by itself, count 1, and the hydrocodone by itself, count 2, resulted in the patient's death [?]. The 10th notes it would not decide if § 841(b)(1)(C) requires the government to prove proximate cause and/or reasonable foreseeability, while noting other circuit opinions have held the government has no such burden. In this case, the government acquiesced in instructions placing that burden on it and so it had that burden under the law-of-the-case doctrine.
Troublingly, the 10th suggests maybe a defendant waives the right to plain error reversal if the defendant does not argue that the plain error standard is met until the reply brief. The 10th acknowledges there are arguments in favor of both sides of that question. Certainly such a rule is problematic where a defendant has good reason to believe the issue was preserved below and only learns of an argument to the contrary when the government files its response brief. The 10th reviewed the defendant's challenge to the admission of an autopsy report as violative of the Confrontation Clause under the plain error standard. While an 11th Circuit case applying Bullcoming to autopsy reports was decided after trial, Bullcoming was decided before the trial. So there was no intervening- change-in-the-law excuse for not raising the issue at trial. The defendant did not satisfy the plain error standard because he didn't show any error affected his substantial rights. Troublingly again, the 10th finds no effect because there was sufficient evidence to convict aside from the autopsy report. That isn't the test. The defendant also forfeited a challenge to the formulation of jury instructions because he did not help the d. ct. draft those instructions, despite the d. ct.'s request that he do so. And he waived a plain error argument by not making such an argument in either of his briefs. And, on the same theme, the defendant did not preserve a challenge to the qualifications and methodology of the government's expert. The defendant only objected below that the expert's testimony would be cumulative and that a pathologist would be a more appropriate expert to testify. Because of the failure to object on Daubert grounds, the d. ct. had no obligation to make explicit reliability findings. There was no plain error to admit the toxicologist's testimony. She was board certified. She did not testify on the ultimate issue of the defendant's guilt. She only explained her observations based on the evidence. The 10th wonders aloud, but does not resolve, whether a defendant would avoid waiver of a plain error argument by noting facts that would support a plain error argument, even if the defendant doesn't explicitly note the plain error standard.
The 10th finds no abuse of discretion in admitting evidence the defendant was high on the list in the state of Utah in number of hydrocodone and oxycodone prescriptions, despite Rule 403. That evidence painted a picture of the defendant's practice as a pain management physician. And, according to the 10th, it countered counsel's claim in the opening statement that the defendant shifted his practice to pain management to eliminate the need of community members to travel to other parts of the state to receive pain treatment. The 10th admitted the evidence could evoke an emotional response, but stressed that to be excluded under Rule 403 the prejudice must substantially outweigh the probative value and that it must accord deference to the d. ct. The 10th distinguished a helpful 8th Circuit reversal under similar circumstances on the grounds that in this case the defendant "opened the door" in the opening statement.
The defendant preserved his arguments challenging the differential treatment between hydrocone mixtures resulting in death , zero to 15 years, and oxycodone resulting in death, 20 years to life. While he refined his argument to refer to "mixtures" on appeal, the gist of his argument hadn't changed from what he argued below. The defendant's 20-year, below-guideline-range sentence was not cruel and unusual. On the thin record before the 10th it could not decide the AG acted irrationally in scheduling one drug under Schedule II and another under Schedule III. The d. ct. did err when it imposed an across-the-board 20-year sentence, given that the maximum sentences of some of the defendant's offenses were less than that. The 10th remanded for the d. ct. to correct that, while admonishing the d. ct. to provide better explanations for its downward variance.

NM Law Requires Arresting Officers to Timely Bring Defendant to Probable Cause Hearing

Wilson v. Montano, 2013 WL 1848138 (5/3/13) (N.M.) (Published) - A good civil rights case that might have ramifications in many New Mexico districts. A deputy sheriff had the plaintiff arrested and detained in Valencia County Detention Center (VCDC). The deputy prepared a misdemeanor complaint against the plaintiff, but he never filed it or brought the plaintiff before a judicial officer for a probable cause determination. 11 days after the arrest, the plaintiff was released by a sua sponte order of a magistrate judge. Similar things happened to many others detained at VCDC. All agreed the plaintiff had a clearly established Fourth Amendment right to a prompt probable cause determination, a hearing within 48 hours of arrest. The defendants defended on the grounds that it wasn't clear who had the obligation to provide that right. But New Mexico law places the obligation on arresting officers. The 10th reached this conclusion despite an unpublished case saying arresting officers do not have such an obligation. An older published case says otherwise. The officer who actually brought the plaintiff to the jail was not liable. He just assisted in an arrest ordered by the deputy. On the other hand, given his personal involvement, the deputy would be liable if the plaintiff's allegations were true. Also New Mexico law placed on the sheriff and the warden the responsibility of ensuring arrestees received prompt probable cause determinations. It didn't matter that the New Mexico Rules of Procedure don't explicitly assign that duty or that a statute prohibited the release of a prisoner without an order of release. They didn't have to release the plaintiff, only provide him with a hearing. The allegations that the warden and sheriff had a policy of holding people without pending criminal charges until a court sua sponte ordered their release were sufficient to establish the necessary deliberate indifference to withstand a motion to dismiss. It did not matter whether they knew of the plaintiff's particular circumstances.

Oral Pronouncement of 12-Month Sentence Was Binding; 33-month Sentence Reversed

U.S. v. Luna-Acosta, 2013 WL 1848761 (5/3/13) (N.M.) (Published) - Reversal of a written judgment for a sentence of 33 months in prison and an order requiring a written judgment reflecting the district judge's oral pronouncement of a 12-month sentence. Defense counsel asked the judge to impose a sentence within a range of 12-18 months, despite a guideline range of 33-41, because when making the plea offer the government had indicated the offense level would be much lower than it turned out to be. Nonetheless, the judge announced a sentence of 33 months to be followed by 2 years of supervised release. The judge granted the defense request to continue the sentencing a couple weeks to when the guidelines would call for no supervised release. At the continuation of that hearing, undaunted, defense counsel asked the judge to reconsider his announcement of a 33-month sentence, explaining her rationale again. The AUSA made no objection, despite being afforded the opportunity to do so. The judge, persuaded by defense counsel's argument, orally announced a 12-month sentence. 5 months later the judge issued a written judgment for 33 months, explaining he only continued the hearing to change the supervised-release part of the sentence. He had no jurisdiction to change the 33-month sentence, once he announced it, the judge declared. And besides, he complained, he has so many cases it's hard to keep track of them all and neither party alerted him to what was happening [not true].
The 10th, in line with 5th Circuit precedent, held the judge's oral announcement of the 33-month sentence did not automatically divest the judge of jurisdiction to change the sentence. He continued the sentencing for all purposes. Although the defense only raised the supervised release issue, the judge continued the hearing before she could have asked for a reconsideration of the prison time, as she did at the next hearing. The nasty 10th Circuit precedent that requires us to make objections after the d. ct. pronounces sentence shows that a d. ct. has the power to correct a sentence after orally pronouncing it until the sentencing is adjourned. It doesn't matter that the next hearing was a few weeks after the first. It might take that long for a d. ct. to consider and research an objection. Because of all that, the 12-month sentence was the real sentence. The d. ct. did not have authority to change the sentence after the 14 days provided by Rule 35(a) to correct a sentence for clear error. In line with a 7th Circuit case, the 10th holds a challenge to a sentence imposed without jurisdiction was not within the scope of the appeal waiver.

Wednesday, May 01, 2013

U.S. v. Madrid, 2013 WL 1632692 (4/17/13) (N.M.) (Published) - The 10th finds reasonable suspicion to stop the car the defendant was driving in the following circumstances: an unidentified tipster reported that in a parking lot of an apartment complex in Bernalillo, NM there were two men arguing and "getting into each other's faces," appearing as though they were about to fight; the caller said he was worried for his fiancee who was supposed to arrive there soon; the tipster described one of the cars and the clothing of the arguing men; the tipster saw no weapons; as he was talking to the 911 operator, the caller saw police cars drive past the parking lot entrance and then the suspects "scattering" with the described car about to leave the lot; An officer stopped the described car the defendant was driving, leading to the discovery of a firearm the defendant wasn't supposed to have. The 10th upholds the d. ct.'s finding that the stopping officer was unaware a physical fight never occurred; the fight could have happened in the couple of minutes between the original dispatch and the officer's arrival. It didn't matter that the officers didn't subjectively believe the defendant was trying to evade the police; the imaginary objective observer could have surmised that was so. The crime the officers were investigating was serious, involving a threat to public safety. So the intrusion on the defendant's personal security was brief and minimal and the government had a strong interest. The 10th characterized the tipster as "marginally less truly anonymous" than the unrecorded tip from an unknown location in J.L. The 10th conceded the police might not have been able to identify the caller because he might have left the parking lot once the police arrived and so there was significantly less information about the tipster in this case than in the 10th's prior tipster cases. Nonetheless, there were enough indicia of the tipster's reliability to justify the stop: he said where he was calling from; there was no reason to believe the tipster wouldn't have provided identifying information if the dispatcher had asked him to; there was no indication he was making up the story; he was reporting his contemporaneous, first-hand knowledge; he gave a detailed account; he said he was motivated to call because of his concern for his fiancee; and the officers verified some of the information he gave [albeit nothing relating to the supposedly imminent, but non-existent, fight], including the arguers leaving the lot. there was no need for him to exhibit inside knowledge because he was reporting on a public event [an event that was not a crime].

U.S. v. Chapman, 2013 WL 1613228 (4/16/13) (N.M.) (unpub'd) - It was okay for Judge Browning, in explaining the rationale for the defendant's sentence, to distinguish the defendant's case involving soliciting bribes from Manny Aragon's on the grounds, among others, that Aragon waived his right to appeal and the defendant did not. The absence of an appellate waiver is not one of the few exceptions to the sort of information a sentencing court may consider. And, besides, any error was harmless, given the many reasons the d. ct. gave for distinguishing Aragon's case and the many other cases it compared and the 7 other factors the d. ct. relied upon.

U.S. v. Fivaz, 2013 WL 1501977 (4/15) (Wyo.) (unpub'd) - The 10th rejects a plain error challenge to delegating to the probation officer the decision whether the defendant would have to participate in cognitive behavioral therapy as a condition of supervised release. The defendant did not demonstrate such a condition would touch on a significant liberty interest in a manner analogous to requiring residential treatment, penile plethysmographic testing or forced administration of psychotropic medication [which are instances the 10th has recognized do implicate a significant liberty interest in the probation officer delegation context].