FBI Agent Entitled to Qualified Immunity for Previous Expert Testimony

Kennedy v. Peele, 2014 WL 92251 (1/10/14) 9Col.) (unpub'd) - The 10th reverses a denial of qualified immunity in a §1983 case. The FBI agent defendant conducted, and testified about, a comparative bullet-lead analysis ("CBLA") of bullets used in murders that Mr. Kennedy was first convicted of. Subsequently the convictions were overturned in part because of doubts arising as to the reliability of CBLA. Mr. Kennedy was not entitled to relief because, unlike in a prior 10th case where the chemist lied about the results of her analysis, the agent did not lie about the bullets matching under CBLA. The agent only reported results with a greater degree of confidence than was warranted. The agent did not have a clearly established constitutional duty to relate the precise error rate or confidence interval of the tests. And at the time, 1993-1997, CBLA was widely accepted.

Certified AT&T Records Properly Admitted As Business Records

U.S. v. Jenkins, 2014 WL 43998 (1/7/14) (Wyo) (unpub'd) - The certification from the AT&T records custodian, who did not appear at trial, was an adequate foundation for the admission of AT&T records indicating Mr. Jenkins' threatening calls were made through an out-of-state cell tower. The records were business records under Fed. R. Evid. 803(6) and were properly authenticated under Fed. R. Evid. 902(11). It didn't matter whether the agent through whom the records were introduced wasn't qualified to talk about the authenticity of the records. The certification accomplished that goal. It was not an abuse of discretion for the district court to allow Mr. Jenkins to ask limited follow-up questions after his lawyer finished direct or cross examinations. Although there was no right to hybrid representation, a d.ct. could allow it. The d.ct.'s "meticulous and exhaustive" discussion on the record established that Mr. Jenkins voluntarily and intelligently elected to represent himself for those brief moments. While Mr. Jenkins' pro se efforts "did him no favors with the jury," it did not cause the jury to be irrationally prejudiced against him.

Self Defense, Involuntary Manslaughter Instructions Should Have Been Given, Warranting Reversal

U.S. v. Toledo, 2014 WL 43986 (1/7/14) (N.M.) (Published) - Failure to give a self defense instruction warrants reversal. The 10th found that if Mr. Toledo's testimony was credited---and that testimony must be given "full credence" when assessing the necessity for a self-defense jury instruction--- the jury could reasonably have concluded that Mr Toledo believed deadly force was necessary to prevent the deceased from causing him great bodily harm. Mr. Toledo testified the much taller and heavier, angry, and drunk deceased rushed toward him with hands up and he feared the deceased would choke him or pull him up over the five-strand barbed wire that was in between them. So Mr. Toledo stabbed him. Testimony that the deceased could be very violent when drinking supported the conclusion that the deceased exhibited "great violence" as he approached Mr. Toledo. The 10th recognized problems with the defense, including the fence, Mr. Toledo's admission at trial that he could have retreated, and testimony that, as he stabbed the deceased, he said "I'm not afraid of you." For each problem the 10th proffered an explanation: despite an agent's testimony to the contrary, a defense witness testified the fence was like a rubber band; in hindsight Mr. Toledo might have realized he could have retreated, but maybe not at the time; and Mr. Toledo's testimony that he was afraid should be taken into account even though he made a contradictory statement at the time. In sum, the 10th stressed the burden to get a self-defense instruction is "not onerous" and all inferences must be accorded in favor of the defense. Mr. Toledo met the burden notwithstanding that the evidence was contradictory and "not overwhelming." And for all the stand-your-ground fans, really good news: self-defense does not require the exercise of a duty to retreat or the recognition of the unavailability of reasonable alternatives. All that's required is a reasonable belief that deadly force is necessary.

From this it followed that Mr. Toledo was also entitled to an involuntary manslaughter instruction. This was so because the jury could have found Mr. Toledo acted in self-defense but was criminally negligent in doing so. The distinguishing factor between imperfect and perfect self-defense is the reasonableness or unreasonableness of Mr. Toledo's belief that deadly force was necessary. A district court may reject a lesser-included instruction only when there is "no evidence" to reasonably support it." (Emphasis by the 10th). Even "weak and contradicted" evidence is enough.

Defendant Who Contested Insanity At Trial Not Entitled to Acceptance Adjustment

US v. Herriman, 2014 WL 114515, No. 12-7085 (10th Cir. 1/14/14)(Published). Defendant planted a bomb near a gas pipeline. He later voluntarily turned himself and confessed. He went to trial with the defense of not guilty by reason of insanity. The jury did not agree and convicted him. He asked for acceptance of responsibility at sentencing. The court did not agree and declined the adjustment. The denial of the acceptance adjustment is the sole issue. The Tenth affirms. The court discusses the differences between challenges to the mens rea element of a defense and the presentation of an insanity defense. The first must be proved by the government beyond a reasonable doubt, while the second must be proved by the defendant by clear and convincing evidence. In this case, the parties disputed whether the defendant was insane at the time he planted the bomb. Thus, he contested the factual issue of his sanity at the time he planted the bomb and did not merely go to trial to preserve an issue relating to the elements of his offense (as in US v. Gauvin). Therefore, the defendant was not entitled to the acceptance adjustment. Furthermore, the court's findings were sufficient.

FRE 106 Does Not Necessarily Require That Entire Writing Be Admitted

US v. Loya-Medina, 2014 WL 128645, No. 12-1042 (10th Cir. 1/15/14) (unpublished). Tenth Circuit affirms defendant's convictions for possession with intent to distribute meth and conspiracy and 180-month concurrent sentences. Defendant challenged the court's admission of most, but not all, of a notebook alleged to be his drug ledger. The trial court redacted two pages that looked like a child's work. The trial court did not abuse its discretion. FRE 106 codifies partially the common-law rule of completeness. The rule does not require admission of an entire writing or statement, only those that are relevant and necessary to clarify the portion received. Defendant failed to develop the argument that Rule 106 required admission of the redacted pages; there was no reason to believe the unredacted portion was indeed a drug ledger and the evidence at trial showed it was. The district court did not abuse its discretion in denying defendant's motion for mistrial after the AUSA improperly referenced, in the jury's presence, that the court had found that there was a conspiracy for purposes of FRE 801(d)(2)(E). The court's curative instruction was sufficient to cure any prejudice. On the sentencing issue, the defendant failed to properly object to the probation officer's drug quantity calculation. Vague objections just don't cut it. There was no plain error.

Unpublished Decisions

Wiglesworth v. Pagel, 2014 WL 30721 (1/6/14)(CO)(unpublished) - Mr. Wiglesworth, an Alaska inmate housed in a CO private prison, argued the disciplinary hearing he received--that resulted in 30 days' segregation--failed to comply with Alaska law. He filed a civil tort claim in Alaska state court, which the defendants removed to Alaska federal district court on the basis of diversity jurisdiction, and which was later transferred to the CO federal district court. The Tenth explains that Alaska retains jurisdiction over Mr. Wiglesworth despite sending him off to the Colorado prison. Consequently, the Colorado district court erred by failing to address the choice of law issue and the proper state law analysis. The case is reversed and remanded.

US v. Dupree, 2014 WL 30723 (1/6/14)(NM)(unpublished) - affirmance of district court denial of motion to suppress. A Luna County deputy sheriff got a tip from his girlfriend that her friend had been beaten by Mr. Dupree and may still be in danger. Cops go out to the friend's house, knock and get no answer. While they are standing outside, a second story balcony door opens and smoke starts coming out. Cops go into the house after a man comes outside. Turns out there are three undocumented men in the house and Mr. Dupree gets charged with conspiracy to transport illegal aliens. The COA holds that officers had an objectively reasonable basis to believe there was an immediate need to find and protect the woman who was reported to have been beaten. The ensuing search was reasonable in light of the exigent circumstances.

Tenth Circuit Rule Change

10th Cir. Rule 10.3(D)(5) has eliminated the requirement that copies of trial exhibits be filed in an addendum. Now the exhibit copies must be included as a supplement to the record pursuant to a motion to supplement by the appellant or as part of the appendix when the government is the appellant.

Unpublished Decision

U.S. v. Bergman, 2013 WL 6728103 (12/23/13) (Col.) (unpub'd) - The district court was wrong to say it had no jurisdiction to consider the defendant's motion seeking the return of surrendered funds while the government appealed the district court's refusal to hold a new trial to the 10th. The appeal and the motion involved two different matters. But the defendant's motion was meritless because she had already settled the forfeiture matter.

Gender Persecution Alone Not An Asylum Basis

Maatougul v. Holder, 2013 WL 6801060 (12/26/13) (Published) - A well-founded fear of persecution on account of gender alone is not a ground for asylum. Gender alone is not a sufficiently distinct "social group" on which to base a "refugee" finding.

Capital Habeas Petitioner Entitled to Evidentiary Hearing on Jury Tampering Issue

Stouffer v. Trammell, 2013 WL 6801057 (12/26/13) (Okl.) (Published) - The 10th remands an Oklahoma capital case for an evidentiary hearing regarding extrinsic contact with a juror. Near the end of the penalty phase defense counsel saw a juror's husband joking with, handshaking and hugging a former roommate of the murder victim. After counsel questioned the husband, the husband scooted out of the courtroom. An amazingly honest deputy sheriff testified he saw the husband repeatedly nod and wink at the juror throughout the penalty stage testimony and closing. The husband nonverbally expressed agreement with the prosecutor's good points during closing to the juror who looked at the husband with a "questioned look on her face." The trial court refused to conduct further inquiry such as questioning the juror. The 10th reviewed de novo whether a further hearing was necessary because the state courts never addressed the issue. The nonverbal communications between the spouses in the courtroom were improper whether or not there were any communications outside of the courtroom. The deputy's lay perceptions about the meaning of the nonverbal conduct should be considered. The conduct strongly indicated the communications were about the matters pending before the jury and they were unfavorable to the defense. This conclusion was not undermined by the juror's prior assurance to the trial court that she refused to talk about the case to her husband when he tried to talk to her about a newspaper article concerning the case. The 10th continues to follow the Remmer presumption that any contact with a juror during trial about a matter pending before the jury is prejudicial. So here the trial court had a duty to hold a Remmer hearing because genuine concerns of improper juror contact had arisen. The federal d. ct. could not reasonably conclude the improper communication was harmless without first holding a hearing and determining the existence and extent of the prejudice based on the circumstances of the contact. The petitioner diligently sought an evidentiary hearing throughout the state and federal proceedings, (although in federal court by virtue of a supplemental pro se request considered by the fed d. ct.). So the petitioner was entitled to a federal evidentiary hearing to protect the Sixth Amendment prohibition against jury tampering.

No other claims warranted relief, according to the 10th. The prosecutor's questioning that could have implied an officer had seen the petitioner with gloves on [to explain why none of the petitioner's fingerprints were at the murder scene] did not infect the trial with unfairness since there was other evidence indicating the petitioner had worn gloves and disposed of them. It was an improper attempt to elicit an emotional response when the prosecutor used highly emotional language in describing the murder, but not prejudicial enough to warrant reversal in light of the overwhelming guilt evidence. The 10th similarly resolved improper statements about how investigating officers emotionally responded to the offense. An argument about the victim's eye following the petitioner as he "staged" the crime scene properly went to the petitioner's state of mind, as did a reference to the petitioner as "cold-blooded." Part of the prosecutor's closing could have misled the jury to believe the petitioner had to prove self-defense, but no harm because the prosecutor also referred to the burden being on the state and the trial judge admonished the jury about the burden. The prosecutor's improperly- phrased question elicited relevant testimony that the victim appeared to be alive at the time, explaining why the officer moved the pistol away from her for safety reasons. The 3 improper appeals to emotion did not cumulatively warrant relief, given that there were many sources of intense emotion in the trial, some emotion is inevitable in a capital trial and the judge told the jury not to be influenced by sympathy. The victim impact statements were improperly "highly charged" but harmless, given the considerable support for the two aggravating factors the jury found, the emotional nature of the guilt-phase evidence and the "modest" mitigating evidence.

Class Disruptions Warranted Enhancement in False Bomb Threat Case

U.S. v. Anwar, -- F.3d --, 2013 WL 6727480 (12/23/13)(published) - The district court properly determined that Mr. Anwar's bomb threats resulted in a substantial disruption of public, governmental, or business functions or services and warranted a four-level enhancement under USSG § 2A6.1(b)(4)(A). In order to avoid an important test, Mr. Anwar, an engineering student, phoned in a false threat to detonate a bomb at New Mexico State University--leading to the shut-down of a class building, the evacuation of 240 people, and the interruption of 14 classes. The interruption to NMSU functions and services was significant in scope and length; the false threats diverted numerous NMSU employees and police and fire department officers from their regular duties.

Statute of Limitations for Malicious Prosecution Does Not Begin to Run Until Improper Charges are Dropped

Myers v. Koopman, 2013 WL 6698102 (12/20/13) (Col.) (Published) - A partial statute of limitations win for a § 1983 plaintiff. The 10th says the plaintiff's allegations "paint a compelling picture of overzealous police work": a detective falsified an affidavit to get a search warrant for the plaintiff's property; officers found a jar containing a white substance; field tests incorrectly identified the substance as meth; the police hailed the seizure as a "lot of dope"; the media portrayed the plaintiff as a meth manufacturer; the detective fabricated facts to get a warrant to arrest the plaintiff; the plaintiff surrendered pursuant to a deal to immediately post bond and be released; the detective told another officer to detain the plaintiff because he was going to file more charges; the plaintiff was held over the weekend; ultimately further testing revealed the white substance wasn't a controlled substance; the charges were dropped. The statute of limitations did not start to run for the 4th Amendment malicious prosecution claim until the charges were dropped. Such a claim arises after the institution of legal process and does not accrue until criminal proceedings have terminated. On the other hand, the due process claim of false arrest fails because there was an adequate post-deprivation state remedy.

A Claim of Sexual Abuse of Prisoner Requires Showing of Coercion

Graham v. Sheriff of Logan County, 2013 WL 6698128 (12/20/13) (Okl.) (Published) - Although the 10th recognizes the need to carefully examine an inmate's consent to sex with a guard, this case didn't present a factual issue with respect to the inmate's consent because it was obvious the inmate wanted to have sex with two guards at the same time. This was so even though one of the guards gave the inmate a candy bar and a blanket, in light of the inmate's invitations to have sex. Although some circuits have indicated consent would not be a defense, the 10th holds that sexual abuse of prisoners is a species of an excessive-force claim requiring at least some coercion, not necessarily physical, by the prisoner's custodian. The 10th did note that an allegation that one of the guards pushed the inmate's head down just before the encounter ended might have justified relief, but that wasn't mentioned in the argument part of the inmate's brief.

No Clear Duty to Release Detainee Where Probable Cause to Arrest is Dissipated, Majority Holds

Panagoulakos v. Yazzie, 2013 WL 6698134 (12/20/13) (N.M.) (Published) - A divided 10th reverses a denial of summary judgment for an APD officer. The officer incorrectly believed that all orders of protection prohibit possession of a firearm, but actually that is only true under 18 U.S.C. § 922(g) if the protected person is an "intimate partner." The plaintiff's ex-girlfriend obtained a protective order against the plaintiff. The order stated: "it may be unlawful for you to possess a firearm," but the "intimate partner" box was not checked. So the order didn't really prohibit firearm possession. After the plaintiff was arrested by others for suspicion of illegal possession of a firearm, the defendant officer checked the order and determined the plaintiff was forbidden from having a firearm. So she had the plaintiff detained. He remained in jail for 11 days. A majority of courts do not clearly impose a duty on an officer to release a detainee whose arrest was supported by probable cause even if probable cause is later dissipated. Some courts say release is mandated if an officer ascertains beyond a reasonable doubt that probable cause is unfounded. But even that test has not been adopted by a majority of the courts. Judge Holloway dissents. He says it is inherent in the nature of investigative detentions that officers learn new information, including information that undermines probable cause. When an officer learns such information, the 4th Amendment requires the officer to release the detainee. The defendant officer acted affirmatively. She didn't just fail to release the plaintiff, Judge Holloway contends.

Police Officer's "Gang Expert" Testimony Admissible, Divided Panel Says

U.S. v. Archuleta, 2013 WL 6608605 (12/17/13) (N.M.) (Published) - In a meth case, the admission of the testimony of Las Cruces police officer Paul Lujan as an expert on the Surenos gang was just fine according to a divided 10th. The testimony was relevant because the defense contended the division of the Surenos the defendant belonged to was just a group of guys who got together and played video games and drank beer while the co-conspirators who testified claimed the defendant was a threatening authority figure in the gang. The expert's testimony about the authoritative Surenos' structure and practices made it more likely the co-conspirators were being truthful. The expert's testimony about the Surenos engaging in various bad acts like home invasions, drive-by-shootings, violent initiation ceremonies, and beatings might ordinarily be concerning as implying the defendant himself engaged in such activities. But here the defendant testified to doing all sorts of horrible things, including running over a dog during a high speed chase. So the expert's testimony wasn't so unfairly prejudicial. There was little risk the testimony would mislead the jury into thinking the defendant was acting on behalf of the Mexican Mafia. And besides the jury showed it wasn't governed by emotion because it acquitted the defendant of one of the counts. The testimony was not needlessly cumulative to a co-conspirator's testimony about the gang because, while some of the expert's testimony was duplicative, the expert also talked about the origins and history of the Surenos and added details about the structure, purpose and activities of the Surenos. It was helpful to the jury under Rule 702 because the average juror was unlikely to be aware of those facts. The 10th acknowledged the expert "probably crossed the line" in violation of Rule 704(b)'s prohibition on expert testimony about the defendant's state of mind when the expert responded to a hypothetical question that a person in a position which was like the one the defendant was in would have the requisite knowledge of the meth dealing. But the defendant couldn't demonstrate any error affected the verdict under the plain error standard, given the weight of the three co-conspirators' testimony.
In dissent Judge Holloway contended the expert testimony was not particularly probative, given the co-conspirators' testimony, and too prejudicial because it created an "aura of fear and mistrust around the defendant" as a Sureno, not as an individual, "given the baroque narrative of Sureno violence and depredation." Judge Holloway noted in particular that the Las Cruces jury would be especially inflamed by Lujan's testimony that the Dona Ana County area had seen a spike in gang violence.

Unpublished Decisions

U.S. v. Pena, 2013 WL 6571668 (12/16/13) (N.M.) (unpub'd) - There was sufficient evidence at a bench trial for the court to find the defendant guilty of carjacking where: the defendant and another burst into a home to retrieve cash stolen from a meth dealer or the Cadillac purchased with the cash; the defendant pointed a gun in the face of the husband occupant; the intruders ransacked the house; at some point the companion pointed his gun at the wife and the couple's daughter; the intruders took a laptop and demanded that the wife give them her purse; she refused; the defendant put his gun back in his pocket and said to his companion: "let's go"; on the way out the defendant saw the keys to the Cadillac and grabbed them; and they left in the Cadillac. These facts were enough to prove the defendant had the intent to kill or inflict serious injury at the time the defendant took the car keys. The judge could have viewed the entire episode, including the events preceding the defendant putting the gun in his pocket and deciding to leave, as suggesting he was willing to hurt the couple if necessary to take the Cadillac when he took the keys.

U.S. v. Begay, 2013 WL 6671208 (12/16/13) (N.M.) (unpub'd) - The 10th affirms a rape conviction. The district court properly interjected itself into the witness examination when the 15-year-old prosecutrix had difficulty answering questions about the encounter at the core of the case and encouraged her to testify. A d. ct.'s job is to encourage testimony. The judge's urging the witness to tell what happened and expressing an understanding that it was difficult to testify about intimate details under the circumstances of a courtroom did not indicate to the jury he believed the witness. It was okay for the d. ct. to give an instruction that the jury should draw no adverse inference from a witness talking to an attorney, despite the defense's contention that the girl was coached by the prosecutors. And the prosecutor's rebuttal statements that "this case was about people who walk among us and take advantage of the weak and vulnerable" was harmless beyond a reasonable doubt in large part because the government presented a very strong case. "Even though the defense may not have been weak, that does not change the compelling nature of the government's evidence," the 10th says.

U.S. v. Ontiveros, 2013 WL 6698074 (12/20/13) (Col.) (unub'd) - The defendant's waiver of counsel was not equivocal even though he suggested he might later retain private counsel. The defendant clearly expressed his desire to go pro se in the face of the d. ct.'s offer to give him reasonable time to hire a new lawyer. While the defendant did not bind himself irrevocably to self-representation, the d. ct. did not abuse its discretion when it refused to grant the defendant's request on the day of the suppression hearing for a few days' time to secure private counsel, despite the defendant's claim that he was unprepared for the hearing. The lack of preparation was not good cause for delay, given the d. ct. gave the defendant time to prepare and the government had 7 witnesses ready to testify. At the end of the suppression hearing the d. ct. granted the defendant's request to reappoint standby counsel.

U.S. v. Silouangkhoth, 2013 WL 6698082 (12/20/13) (Ut.) (unpub'd) - If you have an MDMA case it might be worth looking at the defendant's pleadings in this case, which contend the guidelines overstate the seriousness of MDMA offenses.

U.S. v. Gomez, 2013 WL 6671209 (12/19/13) (Kan.) (unpub'd) - The 10th suggests that maybe the government waived its right to invoke the defendant's appeal waiver in the defendant's appeal of a denial of his § 3582(c)(2) motion where the government effectively waived that right by not invoking it during the defendant's previous direct appeal of his sentence.