Friday, November 01, 2013

Unpublished Decisions

U.S. v. Howard, 2013 WL 5630630 (10/16/13) (Okl.) (unpub'd) - The 10th affirms the imposition of an enhancement under ยง 2K2.1(b)(5) and application note 13 for transferring 2 or more firearms to "an individual whose possession and receipt were unlawful" where the defendant gave his accomplice firearms he had stolen. It didn't matter that the accomplice was not otherwise prohibited from possessing firearms, e.g. he was not a felon. The accomplice's possession was unlawful because it's unlawful to possess firearms one has reason to believe were stolen, as the accomplice did here.

U.S. v. Turrentine, 2013 WL 5663827 (10/18/13) (Okl.) (unpub'd) - The 10th refuses to find clearly erroneous a district court's finding that the officer saw a traffic violation despite the testimony of an FPD investigator indicating the officer couldn't possibly have done so. An FPD investigator testified based on the video, the height of the officers' cars, the location of those cars and the officer's behavior that the officer's view was blocked by the other officer's car. The other officer, who presumably would have had a better view, did not see a violation. It was okay for the district court to believe the officer's testimony. The investigator based his testimony on the video, not first-hand knowledge and assumptions of positioning that may not have been accurate. The 10th refuses to consider a claim that the officer was racially motivated to stop the defendant because the defense did not cite a case for that proposition. The 10th also finds reasonable suspicion to continue the traffic stop despite another FPD employee's testimony. The officer relied on: visible signs of nervousness, such as heavy breathing by the 2 occupants of the defendant's car; the defendant's failure to make eye contact while the officer talked with him; the passenger pretending be asleep; and the defendant saying they had gone to Las Vegas and the passenger saying they had gone to Oklahoma City and nowhere else. The defense said the heavy breathing was attributable to the fact the occupants were overweight and out of shape. An FPD IT guy testified the video showed the defendant and the officer made eye contact 11 times and the defendant looked at the officer another 12 times. But, the 10th says, the district court did not rely on the eye contact and heavy breathing nonsense. The clearly inconsistent stories and the fake sleep were enough to constitute reasonable suspicion.

U.S. v. Benford, 2013 WL 5629793 (10/16/13) (Okl.) (unpub'd) - Contrary to the recommendation of the Federal Medical Center (FMC), the 10th affirms the d. ct's refusal to unconditionally release the defendant from federal custody. 15 years ago the defendant was found not guilty by reason of insanity regarding a bank robbery. He's been in federal custody ever since except for 3 brief periods when on conditional release he failed to take his meds, abused drugs and alcohol and threatened people. The discharge recommendation of the FMC was premised on the assumption the defendant would be transferred to an Oklahoma state mental facility, but that transfer could not be guaranteed with certainty, although the FMC believed that would happen. He does need the structure of a hospital setting. And relevant to some of our cases the 10th reasoned: "past aggression is the single best predictor of future aggression."