Thursday, October 03, 2013

U.S. v. Tolliver, 2013 WL 5194371 (9/17/13) (Okl.) (Published) - The 10th upholds convictions for arson and using fire to commit a felony with respect to two properties. There was sufficient evidence for the interstate element of the arson because, despite documents indicating otherwise, there was evidence the burned house was being rented to someone at the time of the fire based on the testimony of the government's cooperating witness. With respect to the interstate element for the other property, the evidence supported the conclusion that the defendant rented the place to the cooperating witness in light of the witness's testimony and the fact the defendant had a renter's insurance policy for the property. The renting of a property is an activity affecting interstate commerce. There was also sufficient evidence that the defendant started the fire. It didn't matter that there was no evidence the defendant was in financial distress or that the fire contained multiple points of origin. Motive is not an essential element. Again the cooperating witness's testimony was enough. He saw the defendant go into the houses with items he could use to start the fire and the fires started after that And experts indicated the fire started as the witness suggested.
It didn't matter that the statute of limitations had run with respect to the felony of mail fraud that the defendant used fire to commit. The government didn't have to convict the defendant of mail fraud to obtain the conviction. The d. ct. did not plainly err in failing to declare a mistrial due to the government's questions of witnesses insinuating the defendant, who was married, had a sexual relationship with one of his tenants. The d. ct. sustained the defendant's objections and the tenant herself testified to the relationship--testimony the defendant did not challenge on appeal. The defendant was not entitled to a new trial due to a post-trial discovery that one of the government witnesses told an inmate he and the cooperating witness burned down the properties. That evidence could only be introduced for impeachment purposes as a prior inconsistent statement, since it was not given under penalty of perjury, see Fed. R. Evid. 801(d)(1)(A). Impeachment evidence is not enough to get a new trial.
The d. ct. correctly imposed a mandatory consecutive 20-year sentence on top of a 10-year mandatory sentence for the 2 violations of § 844(h)(1). As in the S. Ct. Deal case regarding § 924(c), a conviction can be "second or subsequent" when it arises out of the same case as the first conviction. There's no need for a conviction to happen in between. Findings of guilt by a jury in the same case necessarily follow successively in time. The 10th indicated there was no double jeopardy problem with imposing separate sentences for arson convictions, § 844(i), and using fire to commit a felony convictions, § 844(h)(1). § 844(h) mandates consecutive sentences. The resulting 35-year-10-month sentence was not cruel and unusual punishment. It was significantly lower than the 70-year stat max. The defendant's lack of a criminal history didn't matter. Congress could consider the offenses really serious. And to top it all off it was okay to impose both forfeiture of money to the government and restitution to the insurance companies. The insurance companies couldn't get the forfeited money.

In re Payne, 2013 WL 5200425 (9/17/13) (Okl.) (Published) - The 10th refuses to apply Alleyne to a successive § 2255 motion. Alleyne is a new rule of constitutional law since it overruled prior S. Ct. law. But the 10th cannot authorize the movant to file a successive motion pursuant tor 28 U.S.C. § 2255(h)(2) because the S. Ct. has not held that Alleyne is retroactively applicable. In a footnote in dicta the 10th indicates the movant would not be entitled to relief under Alleyne anyway because no facts increased the range of penalties, even though the d. ct.'s drug quantity finding apparently increased the guideline range.

U.S. v. McCallister, 213 WL 5289967 (9/20/13) (Okl.) (unpub'd) - The defendant's § 2255 motion was successive even though the corruption convictions of the officers involved in his case occurred after he filed his first § 2255 motion. The claim of corruption actually existed at the time of the defendant's trial. The convictions were only further evidence of the officers' corruption.

Vreeland v. Davis, 2013 WL 5289963 (9/20/13) (Col.) (unpub'd) - The defendant's failure to exhaust was not excused by the 6-year delay in his appeal to the state court of appeals because the delay had ended with the appellate court's affirmance of his convictions by the time the case reached the 10th. The case was now pending before the state supreme court. The defendant was not entitled to relief for any excessive delay because he didn't show any prejudice. The appellate court would have affirmed his convictions even if it hadn't delayed. The fact that the delay resulted in delaying his exhaustion of remedies is not prejudice.

The new 10th Cir. Judge Greg Phillips served 7 years as an assistant U.S. attorney with the current governor of Wyoming before being appointed Wyoming attorney general in 2011. Before that, among other things, he had a private practice with the governor and was a Democratic state senator. The Senate confirmed him by an 88-0 vote. There are still two more vacancies on the 10th.