US v. Renteria et al., Nos. 12-8009, 8010 and 8019 (Wyo, 6/27/13)(Published) - meth distribution scheme in which three defendants go to trial, lose on all counts, and fare no better on appeal. 10th starts discussion of legal issues by criticizing counsel for trying to adopt each other’s arguments without specifying how those arguments apply to a particular defendant. Held - (1) no Giglio violation where the record was devoid of evidence of undisclosed agreements with cooperating witnesses; (2) admission of charts summarizing transactions was proper because they were based on available and presented evidence and preparer was subject to extensive cross; (3) evidence sufficient as to all three on all counts; (4) no multiplicity problem because counts involved separate transactions; (5) evidence about gang affiliations was properly admitted because it was relevant to the formation and structure of the conspiracy; (6) testimony explaining how the search warrant process works, including finding of probable cause, did not constitute improper bolstering of credibility by implying that witness's testimony was corroborated by evidence known to the government but not the jury; and (7) no errors, so no cumulative error.

US v. Christie, Nos. 11-2106 & 11-2221 (10th Cir. 6/11/13): The Tenth Circuit affirms Rebecca Christie's second-degree murder and child abuse convictions. The seizure and search of a computer did not violate Ms. Christie's rights. Her husband, who turned the computer over to the agent, was at least a co-owner of the computer and he consented to its seizure. Ms. Christie did not object. The government could assume any fourth amendment interest in the possession of the computer had been relinquished. Challenge to the second search warrant based on the Fourth Amendment's particularity clause is rejected because one clause of the warrant limited the search to information related to the murder, neglect and abuse of the child. The Court rejects an argument that the defense never made about the propriety of how the search was conducted (I looked at the brief filed in this case, and all the argument was directed at the sufficiency of the warrant). However, for future reference, if the defense challenges a computer search, be prepared to present evidence at the suppression hearing suggesting how protocols followed by the government were unreasonable or insufficiently particular. The Court gives rejects the argument that the government unreasonably delayed getting the warrant.
Ms. Christie's Sixth Amendment rights were not meaningfully violated by the exclusion of Mr. Wulf (ex-husband and co-defendant who was severed from the trial) from the courtroom during the testimony of his daughter. Concern about the daughter's psychological well-being was good enough.
The government cross-appealed an Assimilative Crimes Act (ACA) issue, wanting the state homicide charges that were dismissed before sentencing reinstated. The court had allowed the charges to go to the jury. "We affirm the district court's chosen middle path." Clearly, the district court had to dismiss the charges as a matter of law after trial, and the Tenth says it just doesn't have to deal with whether the charges should have been dismissed before trial because any such error was surely harmless. The Court spends a lot of time discussing the ACA and Lewis issue, only to conclude it doesn't have to have deal with the issue. Theoretically, Ms. Christie has a point when she complains about being prejudiced by the multiple charges at trial. The jury instructions were great; the evidence overwhelming; no problem. Chief Judge Briscoe addresses the ACA issue separately but ultimately reaches the same conclusion.

U.S. v. Dunbar, -- F.3d --, 2013 WL 2933116 (Kan.) (10th Cir. 6/17/13) - defendant pled under 11(c)(1)(C) and got the agreed 48-month sentence for distributing cocaine and 36 months for a supervised release violation. The COA rejects multiple claims and affirms. The district court properly rejected defendant's request for new counsel because the record indicates counsel performed satisfactorily and the district court made an adequate inquiry re: defendant's dissatisfaction with counsel's representation. The district court reasonably did not construe defendant's pro se pleading as a request to withdraw his plea; he was represented by counsel and had no right to submit pro se motions. Review of the voluntariness of Mr. Dunbar's plea and his supervised release sentence was only for plain error and that was not shown.

U.S. v. Dyke, -- F.3d --, 2013 WL 2934213 (Okla.) (10th Cir. 6/17/13) - without staking out a position with respect to the required showing to establish outrageous government conduct, the Tenth decides no dice on it under the facts here. "The crimes the government promoted are but cousins to ones the defendants were already busy committing--making meth rather than selling pills and marijuana, counterfeiting currency rather than forging checks. No doubt the new crimes represented a notch up in seriousness but neither were they exactly bolts from the blue." Nor was co-defendant Steele entrapped; there was ample evidence he was "predisposed" to manufacture meth and counterfeit currency. And his sentence was properly enhanced for a prior drug conviction, regardless of the fact it was a state conviction that had long since been expunged from his criminal record by state law. Finally, there was not sufficient evidence to warrant a voluntary intoxication instruction.

Reforming Juvenile Justice: A Developmental Approach

This new report from the Committee on Assessing Juvenile Justice Reform is available from the National Academies Press in hard copy for purchase or for free in .pdf download here. It takes an in-depth look at evidence on adolescent development and on effective responses to adolescent offending.

Perez-Castro v. Holder, 2013 WL 2501939 (10th Cir. June 12, 2013)(unpublished) Tenth Circuit affirms BIA decision that a conviction for Colorado attempted second degree burglary of a building or occupied structure is a crime of moral turpitude, and thus the petitioner was not eligible in removal proceedings for cancellation of removal.

Cavanaugh v. Woods Cross City, Utah, 2013 WL 2501748 (10th Cir. June 12, 2013): On a previous appeal, this civil rights case alleging excessive force was remanded for trial. The jury found that the cop did not use excessive force where the officer tased in the back a woman he knew was mentally ill. she fell, hit her head and was severely injured. There was sufficient evidence that the officer thought the woman was an immediate threat, justifying the tasing, where the officer had responded to a report that she had left the house with a kitchen knife (not known whether it was a butter knife, paring knife, or samurai cleaver), he encountered someone in the front yard wearing a dark hooded sweatshirt with the hood pulled over the head (highly suspicious in February in Utah), she wouldn't answer the cop when he shouted at her, she had her hands under her armpits and no shoes on, she began walking rapidly toward her house, the cop grabbed her and ordered her to stop, she shook free and began running for her house, and the cop shot her in the back, causing her to fall and hit her head on the steps to her house. The neighbor's account was quite different, but the jury could believe the cop so the evidence was sufficient. The Court rejected some challenges to the jury instructions. In addition, it concluded that any error from allowing evidence that the cop subjectively feared bad things might happen if the woman reentered the house was cured by telling the jury that that standard was "objective" and did not depend on the officer's motivations (because jurors always understand and follow the instructions).

US v. Davila, No. 12-167, 2013 WL 2631064 (US June 13, 2013): Mr. Davila didn't want his attorney and asked for a new one. His complaint was that his attorney thought he should plead guilty. At an ex parte hearing with the magistrate judge, the magistrate judge told Mr. Davila that he wouldn't get another lawyer and he should plead guilty. Three months later, he did. The Supreme Court holds that the magistrate indisputably and plainly violated Rule 11 by getting involved in plea negotiations. However, the 11th Circuit erred by ruling that the Rule 11 violation required automatic vacatur of Davila's plea. Rather, it was necessary to consider whether the violation was prejudicial.

Peugh v. U.S., 2013 WL 2459523 (6/10/13) - The S. Ct. held it violates the ex post facto clause to sentence a defendant under a version of the Sentencing Guidelines that calls for a higher guideline range than the Guidelines version at the time of the offense. In the course of holding that applying the higher range presents a sufficient risk of increasing the measure of punishment attached to the crime, the 5-justice majority (all the "liberals" plus Justice Kennedy) the Court discussed the strong effect the guidelines have on what sentence is ultimately imposed, citing, among other things, the fact that sentencing courts must start with the guideline range, the need for sufficiently compelling reasons for justifying the extent of a variance, and the presumption of reasonableness on appeal. The Court noted only about a fifth of sentences are variances or departures not requested by the government and that sentences do tend to go up when the guidelines become harsher. In sum, the "Guidelines are the lodestone of sentencing." So you can see this case would be helpful to us in a case where there is a concern that the d. ct. might upwardly vary and not so helpful to an argument for a downward variance. The Court says the ex post facto clause does not prevent a district court from considering the newer, harsher guidelines as the latest Commission wisdom in reaching a sentencing decision. Justice Kennedy did not join one part of Justice Sotomayor's opinion where she explains the ex post facto clause is about "fundamental justice" and notes a higher guideline range puts more pressure on defendants to plea guilty.
Justice Thomas in a dissent joined by the other "conservatives" stresses the advisory nature of the Guidelines that guide the d.ct. to impose sentences consistent with the statutory mandate of § 3553(a) and concludes there is not sufficient risk of an increased sentence when applying the newer, harsher guidelines. A "nudging" towards a guideline sentence does not create a sufficient risk. He expressed doubt that a circuit court would ever reverse a sentence that was within either the old or the new guideline range. In a part of the dissent only Justice Thomas agrees with, he suggests the Court should overturn the "sufficient risk" test created in California Department of Corrections v. Morales, 514 U.S. 499 (1995)---an opinion he wrote.

Unpublished Decisions

U.S. v. Vaughan, 2013 WL 2398820 (6/4/13) (Col.) (unpub'd) - The Guidelines allow bank robbery convictions to be used as part of criminal history even if the robberies were part of the same scheme as the bank robberies involved in the instant case. This is because robbery is not groupable. See USSG § 3D1.2(d) & n. 6).

Bailey v. Kerns, 2013 WL 2435350 (6/5/13) (Okl.) (unpub'd) - The plaintiff prisoner was unable to show the jail personnel's horrendous non-treatment of her broken arm was pursuant to, or the result of, any sheriff policy or custom. Because of how the jail mistreated her, her arm ultimately had to be amputated.

U.S. v. Penry, 2013 WL 2378577 (6/3/13) (Wyo.) (unpub'd) - The defendant could not obtain the return of his computer that had child porn on it, even though the government never formally forfeited it. He had no right to the computer unless it had been illegally seized and the seizure was legal.

U.S. v. Lindsay, 2103 WL 2436632 (6/6/13) (N.M.) (unpub'd) - The 10th reviewed the defendant's claim as though it had been preserved, because his complaint that the d. ct. failed to consider a factor could not have been raised until after the d. ct. made its § 3582(c)(2) decision and the d. ct. made its decision without having a hearing during which the defendant could have objected. But the claim fails. In a § 3582(c)(2) proceeding, a d. ct. doesn't have to make specific findings regarding every § 3553(a) factor, as long as it states its reasons for denying the motion. The fact that the defendant was already subject to a state life-without-parole sentence did not override the good reasons the d. ct. relied on to deny the motion. It does matter how long the fed folks get to keep him in their prisons before handing him over to the state.

Practice Advisory: Understanding and Mitigating the Effect of Suspended Sentences

For many defendants, potential immigration consequences can be more devastating than prison time. The National Immigration Project of the National Lawyers Guild has published a new practice advisory on the common practice of imposing a suspended sentence. This is a resource every criminal defense lawyer should consult before allowing the client to plead guilty and accept a suspended sentence. It is available here on the NIPNLG's website (along with many other useful resources).

Gideonat50 Website launched

The National Legal Aid & Defender Association (NLADA) announced on June 6 the launch of the Gideonat50 website, a collaborative venture generously supported by the Ford Foundation.

This year marks the 50th anniversary of Gideon v. Wainwright, the landmark Supreme Court decision in which the court unanimously agreed that all individuals must have a qualified defense attorney, regardless of income.

Thanks to the tireless work and dedication of public defenders, many individuals unable to afford counsel are zealously represented against immeasurable odds. Unfortunately, such representation is not always possible everywhere in the nation due to significant resource imbalances and systemic inequities. Chronic under-funding and overwhelming caseloads for public defenders are stretching the justice system to the breaking point. As a result, 50 years after the decision, the promise of Gideon goes largely unfulfilled.

Gideonat50 is an interactive and informative place for visitors to:
Learn about America's justice system crisis.
See a new interactive map prepared by NLADA that for the first time provides a detailed overview of the national landscape of public defense and state specific descriptions.
Sign up to get involved in the Gideonat50 campaign.

The site also features information about three powerful works of literature and film:

Gideon's Army, a Sundance award-winning documentary by director Dawn Porter that follows three young public defenders challenging a broken justice system.
Chasing Gideon, a book by veteran reporter Karen Houppert that movingly chronicles the stories of people in all parts of the country who have relied on Gideon's promise.
Defending Gideon, a short film produced by The Constitution Project and narrated by actor Martin Sheen that features interviews with the key players in the Gideon v. Wainwright case.

The site is available here.

U.S. v. Cavillo-Arzate, 2013 WL 2350214 (5/30/13) (Kan.) (unpub'd) - In the course of rejecting a substantive-unreasonableness challenge to a reentry sentence, the 10th says a couple of problematic things: (1) the length of time between the defendant's prior conviction, which caused the 16-level enhancement, and the arrest for the instant offense (16 years) is irrelevant because the defendant reentered 13 years ago, just a few years after his offense and reentry is a continuing offense and so the number of years it took for the defendant to get caught [and the lack of any other offenses during that time] doesn't matter; (2) there's no unfair discrepancy between the six-level enhancement for a prior crime in the § 2K2.1 context and the 16-level enhancement for reentry offenses; other enhancements can be imposed for a firearm offense and "we're not going to second-guess the Sentencing Commission's decisions in this context regarding the comparative seriousness of different offenses."

U.S. v. Abbo, 2013 WL 2350268 (5/30/13) (Okl.) (unpub'd) - A couple of preservation lessons. (1) The defendant challenged the d. ct. allowing cross of the government's star witness on her drug use only to the extent it may have affected her ability to perceive underlying events and testify lucidly at trial. The defendant argued he was prevented from showing the jury she was untrustworthy because she had previously forged prescriptions. The 10th acknowledges a witness's drug use "is ripe for cross," but the defendant did not preserve any error because the defendant never tried to question the witness about her forged prescriptions or provide the d. ct. with an offer of proof. It was not clear the d. ct. would have prohibited that questioning. (2) The defendant's stipulation that an ATF agent would testify he found in the court files a record of the defendant's convictions waived any challenge to the evidence on foundational grounds, such as that the substantiating documents were not properly authenticated, although the stipulation did not necessarily waive the defendant's 404(b) challenge.

U.S. v. Bly, 2013 WL 2350327 (5/30/13) (Okl.) (unpub'd) - In a § 3582(c)(2) proceeding, the retroactive amendment precluding an enhancement for firearm possession for an underlying offense when § 2K2.4 is used did not apply to the defendant because he was convicted of violating § 922(g)(1) and § 2K2.4 only applies to violations of 18 U.S.C. §§ 844(h), 924(c) and 929(a).

U.S. v. Crosby, 2013 WL 2350321 (5/30/13) (Kan.) (unpub'd) - The 10th affirms denial of the bank robbery defendant's motion under 18 U.S.C. § 3600 for post-conviction DNA testing. The defendant did not raise a reasonable probability of innocence where the defendant offered no theory whose DNA would appear and there were 3 positive eyewitness IDs by bank employees.

In re Weathersby, 2013 WL 1960578 (5/14/13) (Kan.) (Published) - The § 2255 movant did not need authorization from the 10th to file a successive petition because his petition was not successive. The basis for his new claim---the state's vacatur of six of his convictions that put him in a high criminal history category at his original sentencing---arose after the denial of his first § 2255 motion. So now the question before the d. ct. on remand will be whether the movant acted diligently in getting his convictions vacated and if the vacatur will make a difference in his sentence.

Roosevelt-Hennix v. Prickett, 2013 WL 2097419 (5/16/13) (Col.) (unpub'd) - The 10th affirms the denial of a qualified-immunity summary judgment motion where an officer tased the plaintiff while she was sitting in the back seat of a police car with her hands cuffed behind her back. According to the plaintiff, when in the police car with the windows up and the doors locked and not knowing what the police did with her daughter, the claustrophobic plaintiff banged her head against the window to try and get the officer's attention. The officer opened the car door. The plaintiff asked him to leave the door open so she wouldn't go into full panic. The officer refused and told her to calm down. He ordered her to place her feet outside the car so that he could "hobble" her. She told him that, because of a bad back, she couldn't physically do that. Instead of helping her move her feet, the officer put a taser against her thigh and activated it in drive stun mode. Soon she was off to the hospital for back surgery due to paralysis of her lower extremities. There was no incontrovertible evidence in the record that countered the plaintiff's version. Her version clearly established the use of excessive force. The 10th admonished the defense litigants they should have considered their duty of candor to the court before appealing. Ouch.

U.S. v. Simpson, 2013 WL 1960601 (5/14/13) (Ut.) (unpub'd) - The government did not breach the plea agreement when it promised to recommend the defendant receive credit for time already served, but the BOP did not give him credit. The government did recommend the credit at sentencing. The fact that the court had no power to grant credit and so the government's recommendation was worthless didn't faze the 10th.

Parkhurst v. Wilson, 2013 WL 1984384 (5/15/13) (Wyo.) (unpub'd) - The 10th reaches a conclusion directly contrary to a decision the S.Ct. makes a few days later in Trevino v. Thaler, a case Carol reported about on Tuesday. In fact, the 10th says the position the S. Ct. ultimately took wasn't even arguably correct. The 10th ruled Martinez v. Ryan did not apply because Wyoming did not absolutely prohibit a defendant from raising ineffective assistance of trial counsel claims on direct appeal, it just was in reality impossible for the petitioner to do so. In Trevino, the S. Ct. later pointed out how ridiculous that distinction is. So, in the 10th's case, the petitioner could not raise as an excuse for the procedural bar the incompetence of his counsel in state collateral proceedings. The petitioner had several other procedural problems with his petition. So Trevino will likely not save him.

U.S. v. Simons, 2013 WL 2130264 (5/17/13) (Kan.) (unpub'd) - The 10th trashes a favorite brief-writing approach: "Simons' bitter whining is not an adequate substitute for disciplined and thoughtful argument."