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.