Wednesday, February 26, 2014

Plain Error Argument Waived Because Not Made in Brief-in-Chief

U.S. v. Rivera, 2014 WL 486218 (2/7/14) (N.M.) (unpub'd) - Troublingly the Court says Mr. Rivera waived his plain-error argument because he didn't mention it in his opening brief, even though he did raise it in his reply brief after the government contended the issue wasn't preserved below. The district court erred when it refused to allow the defense to impeach the government's witness with a prior admission that she possessed a handgun when she denied on the stand that she had made such an admission. The judge thought the question was about a prior firearm possession conviction. Nonetheless the error was harmless in light of the other evidence against Mr. Rivera, government witness testimony that the witness had possessed a firearm and that the impeachment was on a trivial point. The Court notes the Allen instruction was less coercive than some because it called on each juror, not just the ones in the minority, to reconsider his or her views.

Evidence of Prior Drug Runs Allowed

U.S. v. Ugalde-Aguilera, 2014 WL 486216 (2/7/14) (N.M.) (unpub'd) - The district court did not abuse its discretion when it allowed evidence of Mr. Ugalde-Aguilera's 3 prior marijuana runs with the testifying snitch. The other deliveries were strikingly similar to the one Mr. Ugalde-Aguilera was charged with and occurred within a year of when he was stopped with the marijuana in this case. They were probative of Mr. Ugalde-Aguilera's knowledge of the marijuana in the truck. And defense counsel opened the door by inexplicably referring to the prior deliveries during opening and crossing the snitch regarding the snitch's purportedly inconsistent statements about the other deliveries as though they were about the events leading to the charge in this case, confusing the jury.

Defense Question of Government Witness Was Manifest Necessity to Grant Mistrial, Order New Trial

U.S. v. Davis, 2014 WL 486234 (2/7/14) (Okl.) (unpub'd) - There was manifest necessity for the district court to grant the government's mistrial motion and have a new trial where defense counsel asked Mr. Davis's wife, a government witness, about her living with a sex offender. The defense point was that the wife was willing to risk losing her kids to live with the sex offender, showing how badly she wanted to get rid of Mr. Davis and be with someone else. But there wasn't evidence living with the sex offender caused her to lose custody. The Court was impressed with how conscientious and measured the district court was: considering a jury instruction alternative and even waiting until the next day to finally decide. The Court deferred to the district court's ability to assess the participants' demeanor and the trial atmosphere.

Alleyne Issue Was Untimely

U.S. v. Reyes-Soto, 2014 WL 486264 (2/7/14) (Col.) (unpub'd) - Mr. Reyes-Soto's raising of Alleyne is untimely because Alleyne is not retroactively applicable and his conviction became final 7 years ago.

Enhancement Issue Waived

U.S. v. Johnson, 2014 WL 351466 (2/3/14) (Ut.) (unpub'd) - Because Mr. Johnson did not object to the enhancement for distribution of child porn he effectively waived the issue for appeal because it was a factual issue that can't be resolved through plain error review. This determination did not violate Mr. Johnson's Sixth Amendment right to trial because the guidelines are advisory and, because of a downward variance, his actual sentence did not exceed the maximum sentence authorized by the facts established in the guilty plea during which distribution was not mentioned.

Wrongful Arrest Plaintiff Gets Remand for Trial

Garcia v. Escalante, 2014 WL 464222 (2/6/14) (N.M.) (unpub'd) - Mr. Garcia submitted enough evidence to support his claim that his arrest was without probable cause in order to defeat the defendants' summary judgment motion where: when Mr. Garcia tried to enter a Bernalillo County state courthouse a deputy sheriff working security opened a vial and found hydrocodone pills; the plaintiff's mother left the courthouse and brought back a valid prescription for hydrocodone dated more than a year before the incident; nonetheless, an officer arrested Mr. Garcia for possessing a controlled substance without a prescription. Mr. Garcia did not have to submit to the court the actual prescription. It was enough that he testified during his deposition that his mother proffered such a prescription. It didn't matter that a prescription may not be filled more than six months after its date. Mr. Garcia was not trying to fill a prescription. He was under no obligation to use all the medications within 6 months of the prescription date. The Court remanded for trial.

Reentry Defendant's Sentence Affirmed

U.S. v. Estrada-Barrios, 2014 WL 464224 (2/6/14) (unpub'd) (Okl.) - The Court says the district court did not mistakenly believe the reentry guidelines recommended a supervised release term, even though the district court said things like; "the court denies the motion for a variance regarding the non-imposition of supervised release." The Court conceded what the judge said supported Mr. Estrada-Ramos's contention, but in context, such as the judge reading what defense counsel argued in his objections, the judge wasn't mistaken and there were reasons for imposing supervised release, i.e., an upward variance because Mr. Estrada-Ramos returned 3 months after deportation and having two sons to visit in the U.S., made it more likely he would return again. The Court didn't decide whether Mr. Estrada-Ramos's maximum sentence was two or twenty years. Instead, it said any error in imposing a sentence above 2 years was not plain where the defendant was ordered removed before he was convicted of an aggravated felony and was actually removed after the conviction. There was a difference of opinion among judges on the issue of whether the conviction must come before the deportation order or the actual deportation. So the error couldn't be plain. A circuit court judge's dissent didn't change that, no matter how scholarly and thorough the dissent was.

Prosecutor's remarks were improper, but prejudice was prevented by Court's prompt admonition

U.S. v. Serrato, 2014 WL 494828 (2/7/14) (Wyo.) (Published) - During counsel's cross of an agent about the agent not bringing in a recording, the prosecutor interrupted: "Counsel has every bit of discovery. If counsel wants to play the recording he can play it. It was not up to the agent to bring it." The Court says the remarks might have impermissibly suggested the defendants bore the burden of production because the Court refused to speculate jurors understood the legal process of discovery. Any prejudice was cured by the judge's immediate instruction that any suggestion the defendants had information they should reveal was improper. It would have been better if the district court sustained, rather than overruled, the defense objection to the prosecutor's statement that the defendants could have asked the agent certain questions if they wanted to. Once again the district court cured any prejudice, this time by immediately telling the jury the defense had no obligation to cross-examine.

The evidence was sufficient to establish one conspiracy, rather than two, where one meth supplier of one defendant helped that defendant sell meth provided by the other defendant. Even a one-time act will suffice if the nature and objectives of that conduct contributed to the larger conspiracy. The Court refused to decide if the district court erred by enhancing for importation because the range of 30 years to life would be the same even though the offense level would be different. There was sufficient evidence the co-defendant used and carried a firearm during drug trafficking where several witnesses testified to seeing him with a gun while involved in drug activity, even though the actual gun was never placed into evidence.

There was reasonable suspicion to suspect Mr. Serrato's van was involved in drug activity justifying a traffic stop where: officers knew from surveillance that out-of-state cars would come to the co-defendant's home to deliver meth and park in the garage; the officers had information a meth delivery would be made to go to Iowa on the date of the traffic stop; and on that date Mr. Serrato came to the home after a car with Iowa plates came and went.

Thursday, February 20, 2014

Tenth Circuit Website Redesigned

The Tenth Circuit Court of Appeals has announced that "the redesign of our internet website will go live on Friday evening February 21, between 5:00 p.m. and 6:00 p.m. This new site has been redesigned from the ground up to improve electronic access to court resources for attorneys, parties and the general public. It is now easily viewable regardless of your screen size on desktop, tablet and mobile browsers." The new website will be available beginning Friday evening, February 21, at

Tuesday, February 11, 2014

Concealing Husband's Activities Was Not Cool

U.S. v. Kool, 2014 WL 260543 (1/24/14) (Okl) (unpub'd) - The wife of a man who took sexually explicit photos of his daughter and nieces was convicted of failing to notify authorities and concealing what her husband was up to by trying to delete the photos, smashing a computer hard drive and discouraging the children from reporting to police. The 10th holds it was okay to admit an officer's testimony against Ms. Kool that when he told Mr. Kool one of the photos had a hand with tattoos. Mr. Kool moved his hands from the interview table to under his armpits. This was not hearsay, the 10th says. It was fine for the trial judge to determine Mr. Kool did not intend his motion as an assertion. Guess what the tattoo on the hand said: "Kool."

Prison Should Have Allowed Inmate to Use Sweat Lodge

Yellowbear v. Lampert, 2014 WL 241981 (1/23/14) (Wyo.) (Published) - A Wyoming prison violated the Religious Land Use and Institutionalized Persons Act when it refused to allow Mr. Yellowbear to use the sweat lodge at the prison. The prison substantially burdened Mr. Yellowbear's right to engage in a religious exercise under the Northern Arapaho faith. The prison failed to show its sweat-lodge prohibition served a compelling government interest and was the least restrictive means to serve that interest. There was no support in the record for the prison's claim that the hot coals and fire were unsafe. Nor did the need to lock the prison down to safely get Mr. Yellowbear to the sweat lodge pass muster. [Mr. Yellowbear was in a special protective unit because of threats to him]. The prison locked down on a daily basis to move certain prisoners for non-religious purposes. The prison didn't present evidence to support its claim that if it let Mr. Yellowbear use the sweat lodge other specially-housed inmates would flood the prison with requests. And Mr. Yellowbear suggested the prison could avoid a lock-down by letting him go to the sweat lodge early in the morning or by building a second sweat lodge in the protective custody unit. The prison didn't show why those alternatives wouldn't work.

Conviction for Making False Statements Affirmed

U.S. v. Schulte, 2014 WL 211833 (1/21/14) (Col.) (Published) - Mr. Schulte was convicted of making a false statement to an FDA agent in violation of 18 U.S.C. ยง 1001(a). The jury had five statements to choose from, but the jury just issued a generic verdict. Plain error review applied to Mr. Schukte's claim that 2 of the five statements relied on a legally deficient theory because before the district court he only challenged the factual sufficiency of the evidence. There's a big difference between the two challenges. The conviction would stand if there was evidentiary factual support with respect to any of the statements. But if a conviction on any of the statements was legally deficient then the conviction would be overturned because juries aren't expected to be able to tell when a charge is legally deficient. The questions leading to the 2 statements were not fundamentally ambiguous given the context. The questions could be mutually understood by the questioner and the answerer. All this based on the agent's testimony and his notes, not a recording. The government presented sufficient evidence to negate Mr. Schulte's alleged understanding of an "arguably ambiguous" question. There was plenty of evidence contradicting Mr. Schulte's faulty memory claims. None of Mr. Schulte's subsequent corrections to his statement included an admission that would actually correct the falsity of the original statement. Mr. Shulte's statement was material because it was capable of misdirecting the focus of the FDA investigation from a company policy [the company was run by Mr. Schulte] to unknown activities by rogue employees. It didn't matter that his false statement didn't actually influence the FDA.

Indian Tribes Have Sovereign Immunity

Bonnet v. Harvest Holdings, Inc., 2014 WL 292616 (1/28/14) (Ut.) (Published) - This case might be relevant to those seeking information from an Indian tribe. Indian tribes have sovereign immunity from a subpoenas duces tecum. The subpoena is a "suit" subject to tribal immunity. On the other hand, the 10th suggested a tribal official might not be immune---an issue the 10th saved for another day.

Mandatory Minimum Sentence, Conviction Reversed

U.S. v. Biglow, 2014 WL 308963 (1/29/14) (Kan.) (unpub'd) - A defense victory with respect to one conviction and the sentence. There was insufficient evidence to sustain Mr. Biglow's conviction for unlawful use of a communication facility because the jury instructions required the jury to find he helped to distribute a controlled substance. He only attempted to get cocaine, but was turned down. The instructions said nothing about attempt. The district court committed reversible plain error when it sentenced Mr. Biglow based on the mandatory minimum for a conspiracy involving 500 grams or more of cocaine when the record indicated his personal culpability was for less than that.

Monday, February 03, 2014

Stop of Slightly Weaving Vehicle Affirmed

U.S. v. Harmon, 2014 WL 278528 (1/27/14) (NM)(published) - There was reasonable suspicion to stop defendant's vehicle for violation of the statute that requires staying within a lane where the defendant crossed the white fog line once after weaving within the lane. Officer Lucero could reasonably have suspected driver impairment. After the district court denied the motion to suppress, the defendant moved to reopen it upon learning that Officer Lucero had also been involved in an unrelated traffic stop in which he had informed the dispatcher that the stop was motivated by a tip from the DEA and asked the dispatcher to omit that info from the CAD report. Mr. Harmon contended that this info was Brady impeachment material that undermined the officer's credibility and should have been disclosed. The Tenth decides the district court did not abuse its discretion in ruling that the evidence lacked impeachment value and would not have changed the outcome of the suppression hearing. With respect to the prior case, "Officer Lucero was under no obligation to place every piece of relevant information into the CAD report . . . and there were legitimate reasons that he might want to keep confidential the DEA investigation leading to" the defendant's vehicle.

Exigent Circumstances Justified Seizure of Shot Gun

U.S. v. Gordon, 2014 WL 278532 (1/27/14) (Ut.)(published) - exigent circumstances justified officers' warrantless entry of defendant's home in response to a domestic violence complaint. It was reasonable for the officer to follow the victim/ caller into the bedroom to retrieve her glasses while awaiting the arrival of the medical team--after defendant was already in custody. The victim said she feared for her life and there were weapons throughout the home. Seizure of a shotgun in plain view and its removal from the home, which occurred before officers learned of defendant's felony status, was a de minimis intrusion on the defendant's rights and did not justify suppression of the shotgun.