Civil Rights Claims that Sex-Offender Treatment Violate 5th, 14th Amendments Dismissed

Doe v. Heil, -- Fed. Appx. --, 2013 WL 4504772 (10th Cir. 8/26/13)(Colo.)(unpublished) - the Tenth decides the district court properly dismissed civil rights claims asserting violations of the Fifth Amendment privilege against self-incrimination and Fourteenth Amendment right to substantive due process by conditioning the release of Mr. Doe, a convicted sex offender, on progress in sex-offender treatment that in turn required him to cooperate on polygraph tests and disclosure of a full personal sexual history. With respect to the self-incrimination claim, Mr. Doe did not plead sufficient facts to permit a court to plausibly infer that the state policies were not reasonably related to legitimate penological interests. With respect to the liberty interest claim, Mr. Doe did not plead sufficient facts to establish a constitutionally protected liberty interest in continued sex-offender treatment.

Capital Habeas Petitioner Gets Relief

Williams v. Trammell, -- Fed. Appx. --, 2013 WL 4504774 (10th Cir. 8/26/13)(Okla.)(unpublished) - yet another reversal in an Okla. death case, based on Beck v. Alabama, 447 U.S. 625 (1980), due to failure to instruct on second-degree depraved-mind murder. In Beck, the Court held that a sentence of death may not be constitutionally imposed for a capital offense when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense which would have been supported by the evidence. Here, a rational jury could have acquitted Williams of first-degree murder and convicted him of second-degree murder, on which an instruction had been requested, in light of evidence that he was severely emotionally disturbed at the time of the murder and may not have had the requisite mental state for first-degree murder.

Securities Fraud, Money Laundering Convictions Overturned Because of Erroneous Jury Instruction

US v. McKye, 2013 WL 4419330, No. 12-6108 (10th Cir. 8/20/13) (published): Court reverses defendant's convictions for securities fraud and conspiracy to launder money derived from the fraud. The charges involved 8 transactions and implicated numerous entities owned or operated by defendant. One of those businesses was Heritage Estate Services, which would prepare revocable trusts for clients. If clients could not afford the full cost of the service, they could finance it for 36 months by signing a promissory note in favor of Heritage. Some of the loans included documentation of a claimed lien on the client's home. The loans were sold were another entity owned or operated by defendant, Global West.
Heritage also offered to its clients investment notes issued by Global West, that allegedly paid high rates of return, The notes were "backed" by the trust loans and represented as being backed by real estate notes and mortgages. More than $5 million worth of these notes were sold and transferred to several entities owned or controlled by defendant. An IRS agent testified this was a Ponzi scheme.
Defendant sought a jury instruction requiring the jury to determine whether the investment notes at issue were securities for purposes of the charged crimes.The trial court refused, accepting the government's argument that the notes were presumed to be securities and defendant had not presented evidence to overcome the presumption. The Tenth reverses the convictions. The question of whether a note is a security has factual and legal components. The legal standard in Reves v. Ernst and Young, 494 US 56 (1990), must be applied to determine whether a particular note is a security. The trial court erred in instructing the jury that all notes are securities. Finally, the error was not harmless.

Unpublished Decisions

U.S. v. Lake, 2013 WL 4017293 (8/8/13) (Okl.) (unpub'd) - A very puzzling defense win due to Alleyne. The government and the 10th agreed with the defendant that increasing the guideline range under USSG § 2D1.1(a)(2) due to a judicial finding that the heroin conspiracy caused a heroin recipient's death violated the Sixth Amendment. If the 10th is serious about this, the holding undermines every guideline enhancement any judge ever imposes unless the defendant has agreed to it or a jury has found the triggering fact(s) beyond a reasonable doubt. The 10th has consistently held before this that the 6th Amendment is not violated when a judge's finding of fact increases the maximum of the guideline range because the guidelines are advisory. This was the whole point of the S. Ct. making the guidelines advisory in Booker. Certainly the 10h's holding would make sense under Alleyne if the judge's finding established a statutory mandatory minimum. But that's apparently not what happened in this case. Weird.

Thomas v. Adrahtas, 2013 WL 4008702 (8/7/13) (Okl.) (unpub'd) - The 10th affirms a denial of a summary judgment motion in a § 1983 civil rights case. The facts if proven at trial would establish an excessive force claim where the plaintiff alleged that after the police officer handcuffed him the officer stepped on his back, rendering him unconscious, drop-kicked him, kicked him in the head and neck and repeatedly slammed the patrol car door on his leg, all of this resulting in a concussion, wrist and knee injuries and long-term vision problems.

U.S. v. Huffman, 2013 WL 4008706 (8/7/13) (Kan.) (unpub'd) - The 10th affirms a 10-year prison sentence for a probation violation, despite the probation office and the government recommending a few months. The sentence was the guideline range-statutory max, for the original child porn offense but was way above the guideline range of 3 to 9 months for the violation. For the original sentencing without the max, the range was 135 to 168 months. The d. ct. strenuously resisted the parties' agreement that the defendant should get 5 years probation. After 2 experts testified on behalf of the probation sentence at a second hearing the d. ct. relented and agreed to give probation with the condition of completing a treatment program. The d. ct. said to the defendant: "if you mess up while you're in this program, you'll be standing right back here and there won't be any second chances." "If I mess up, I deserve it," the defendant responded. The d. ct. ominously replied: "I'm going to remember you said that." During a year and a half of probation the defendant successfully completed the treatment program but committed several Grade C violations, i.e,. not submitting a monthly report, not getting a job, drinking excessive alcohol once, testing positive for an unauthorized prescription drug, missing one drug screening and one weekly sex offender session, watching adult porn and once being at a home close to an internet-accessible computer. The defendant explained that transportation problems caused some of the violations and he couldn't get a job because he was a sex offender. The probation office recommended 120 days at a halfway house. The government recommended 6 months in prison. The d. ct. imposed 10 years because it realized it had made a mistake imposing probation and the only way the defendant would get the message would be to receive significant prison time.
In assessing the substantive reasonableness of the sentence, the 10th presumes the sentence to be reasonable because it was within the guideline range for the offense. Under 18 U.S.C. § 3565(a)(2), the 10th explains, a d. ct. has the authority to revoke probation and resentence the defendant under the subchapter related to the original offense conduct. So the d. ct. could ignore the guidelines for Grade C violations. To rely on the Grade C violation range would mean the defendant would be in a better position after violating probation than he was before the violations. According to the 10th, the d. ct. did not abuse its discretion in weighing the defendant's recidivist tendencies [although he never actually broke any criminal laws] more heavily than his youth and the experts' opinions which had been proven wrong by his subsequent conduct.

Williams v. Ezell, 2013 WL 4008708 (8/7/13) (okl.) (unpub'd) - An inmate win. To exhaust his administrative remedies the inmate did not have to file a grievance complaining about the prison's unresponsiveness to his grievances relating to the § 1983 claims he raised.

Constitutional Challenges to ACCA Mandatory Sentence Rejected

US v. Orona, No. 12-2129 (NM, 7/31/13)(Published) - The 10th rejects the argument that using juvenile adjudications as ACCA predicates violates the Eighth Amendment. Why not? (1) no national consensus against using juvie priors to enhance adult sentences; (2) principles announced in Roper and Graham, banning death penalty and mandatory LWOP for juvies, don’t apply, since defendant was not being sentence for juvie conduct; (3) ACCA sentence is strictly for the instant offense and in no way constitutes a sentence for a prior offense; (4) using juvie adjudications as ACCA predicates serves legitimate penological goals; and (5) using them does not produce grossly disproportionate sentences. The court also rejected their argument that the ACCA residual clause is void for vagueness. Justice Scalia may think so, but neither his colleagues nor any other court agrees with him.

Career Offender Status Precludes Crack Sentence Reduction

US v. Hodge, No. 13-6042 (WD Okla, 8/1/13)(Published) - Another crack defendant who was not eligible for a sentence reduction because he was sentenced as a career offender. He had already lost such a claim based on Amendment 706. This case involved Amendment 750, adopted after the effective date of the Fair Sentencing Act. The court had already held in a series of unpublished opinions that he same reasoning that applied to the Amendment 706 cases applied to Amendment 750 cases. This opinion was apparently published to make that official. Plus, the defendant could not benefit from the FSA itself because it was not a proper basis for a sentence reduction, and also was not retroactive. Finally, the court rejected defendant’s due process argument because sentence reductions proceedings are not constitutionally required and therefore do not implicate a liberty interest.

Reentry Sentence with Supervised Release is Presumptively Reasonable

U.S. v. Tena-Arana, 2013 WL 3814943 (7/24/13) (Col.) (unpub'd) - A reentry sentence that includes a supervised release term is entitled to a presumption of substantive reasonableness even though the guidelines suggest not imposing such a term. USSG § 2L1.2 application note 5 says a supervised release term can be appropriate to provide added deterrence and protection.

OK Capital Petitioner's Arguments, Including Prosecutorial Misconduct and Ineffective Assistance Claims, Rejected

Glissop v. Trammell, 2013 WL 3822119 (7/25/13) (Okl.) (unpub'd) - Another Oklahoma death penalty upheld. It was not fundamentally unfair to allow the prosecution to use posters detailing prosecution witness testimony and let the posters remain visible to the jurors throughout the trial. The posters with the various inconsistent post-murder statements of the petitioner were not much of a problem because the defense didn't really dispute them [the defense was the petitioner tried to hide the murder that someone else committed]. The posters with the accomplice's accusations came near the end of the case and the jury didn't need to be reminded of his testimony. And the jury didn't see the posters during deliberations and the petitioner used posters as well. It was reasonable for the state appellate court to review the poster issue without looking at the posters. Using the words "due process" twice in his state court brief challenging the posters probably did not exhaust the constitutional issue.

None of the prosecutorial misconduct issues rendered the trial fundamentally unfair, including: arguing the complete absence of defendant's fingerprints in the motel room where the murder took place indicated the petitioner, who was the motel manager, [Best Budget Inn, if that might influence your choice of motels in the future], wiped off all his prints to hide evidence; mislead the jury by saying the state never charged the petitioner with the lesser offense of accessory after the fact when it actually initially did; implied the lesser-offense defense is a typical underhanded defense tactic [that was wrong but harmless; the trial court made the prosecutor clarify the matter]; the wife of the victim, who was the petitioner's boss, testified about the tragedies that befell her husband before the murder, his diabetes, and how nice he was [the overwhelming bulk of evidence was relevant to explain why the motels had gone into disrepair [his tragedies] or his wife became worried so soon after she hadn't heard from him [the diabetes] and the irrelevant stuff was no big deal]; questioning of a prosecution witness implied she had said other unhelpful things to the police but had forgotten them [the purpose was to show the witness was testifying from memory and not from the irrelevant police report]; saying that in Oklahoma we punish cold-blooded murderers with death, placing the victim's photograph on the defense table and indicating the petitioner befriended mitigation witnesses so that they would testify for him at the penalty phase [the 10th can't substitute its views for the state court's view that the prosecutor's comments were proper commentary regarding the continuing threat aggravator; the jury didn't find that aggravator; the prosecutor's statement indicating a personal belief that petitioner's death was appropriate was not the major focus of the argument and was "not overly dramatic"].

The ineffective assistance claims fail as well, including: not using the main witness's videotape to impeach even though the petitioner's conviction had been reversed due to prior counsel's failure to use the videotape and the witness fudged regarding some of the statements he made on the videotape [counsel got out some of the inconsistent statements and the leading nature of the interrogation on cross, making the point that the witness had changed the story in ways that helped the prosecution; the 10th thought the officers' questioning on the video was "not sufficiently manipulative to make it evidence that the witness would not have implicated the petitioner except for the officer's suggestive questioning"]; not introducing the main witness's prior competency evaluation indicating he got kicked out of school for fighting and carried out a burglary and a bomb threat [the evidence was so overwhelming that the witness was totally dependent on the petitioner that the evaluation would have made no difference, especially since it wasn't clear the witness committed his prior offenses on his own].

The main witness was not so incredible that there was insufficient evidence to establish the aggravating factor of employing the witness to murder for remuneration [$10,000, in case you're interested in the price of such a thing these days]. The federal court cannot second-guess the state courts and the jury regarding credibility. There was no clearly established S. Ct. law that the Confrontation Clause applies to capital sentencing hearings. So no relief for a witness reading some of the victim's family's statements regarding the impact of the murder on them. The 10th may find a principle not clearly established even if the state court finds a constitutional violation.

Tenth Rejects Petitioner's IAC Claim Where Counsel Did Not File Suppression Motion

Ayala v. Hatch, 2013 WL 3814933 (7/24/13) (N.M.) (unpub'd) - In this habeas case, the state court could reasonably conclude it was competent representation to decide the best course of action was to not file a motion to suppress and accept responsibility for abusing the defendant's 2-month-old daughter and focus on sentencing [with respect to which the state court held counsel was ineffective for failing to raise certain mitigating factors; upon reconsideration the defendant's sentence was reduced from 30 to 18 years]. The 10th recognizes a diagnosis of osteogenesis imperfecta (OI) or brittle-bone disease, may exculpate a parent accused of inflicting injuries on a child and perhaps counsel should have investigated that issue once family members told him the child might have OI. But no prejudice was shown since no evidence was ever presented that the child actually did have OI.

Traffic Stop Extension was Reasonable

U.S. v. Hernandez-Lizardi, 2013 WL 3802135 (7/23/13) (Kan.) (unpub'd) - There was reasonable suspicion of criminal activity to justify extending the traffic stop where: (1) the defendant was using a dealer's tag even though he claimed to have purchased the pickup; (2) there were 3 mobile phones in the pickup, but only 2 occupants [the 10th acknowledges having mobile phones is not as big a deal as it used to be, but having more mobile phones than occupants was not completely innocuous]; (3) the pickup's bill of sale stated an implausible $1,000 purchase price for a '03 Chevy extended-cab pickup; (4) the bill of sale listed an address in Kansas City for the defendant, while the defendant and his license indicated he lived in Anaheim; (5) the passenger exhibited nervous behavior by avoiding eye contact; and (6) the defendant's "bizarre" travel plans (driving 1,600 miles to pick up the passenger, then drive 1,200 miles to repair a friend's car and then drive 1,600 miles home). The defendant's consent to take a "quick look" in the pickup was voluntary, even though he was involuntarily detained, given that the officer's demeanor was "pleasant" and the encounter took place on a public highway. Granted, many of the officer's "requests" were phrased as directives. But the request to search was phrased as a request for permission. The defendant understood the officer's statements in English even though the defendant knew Spanish better. "The law recognizes an inevitable level of pressure inherent in being the subject of law enforcement scrutiny and assumes that an ordinary person can still exercise a free choice." The 10th does suggest the defendant might have been arrested, despite the government's argument to the contrary, when he was told to drive his pickup to the station while sandwiched between the troopers' vehicles. But there was probable cause that the defendant was involved in drug trafficking justifying the arrest in light of the 6 factors noted above plus, after denying having any money in the pickup, the defendant volunteered, as the officer began the search, that he had a huge amount of cash, which totaled $14,400 conveniently banded by denomination.

Failure to Specifically Object to District Court's Explanation for Sentence Results in Plain Error Review

U.S. v. Chavez, 2013 WL 3801687 (7/23/13) (Col.) (Published) - The defendant is stuck with plain error review because, although he objected to consecutive sentences, he did not object to the district court's explanation for why it imposed the sentence to run consecutively to the yet-to-be-imposed state sentence. The 10th did not believe the district court applied a rigid rule that all state sentences should run consecutively to all federal sentences even though the district court said: "there should be federal sentences for violating federal laws, and there should be state consequences for violating state laws." The district court said other things indicating that proposition applied in this particular case. The defendant did not overcome the presumption that the district court weighed every 18 USC § 3553(a) factor. The 10th indicates in a footnote there's no binding authority in the 10th taking sides on the circuit split as to whether a sentence can begin to run before the actual date imposed. The 10th presumed the substantive reasonableness of the sentence even though there was no guideline for the state sentence that had not been imposed. And anyway adding the later-imposed state sentence to the federal sentence left the total sentence within the guideline range. A district court's failure to state how certain mitigating factors play into the sentencing decision does not render a sentence substantively unreasonable.