Tax Protester's Jury Instruction Arguments Rejected; Convictions for Filing False Liens Affirmed

U.S. v. Williamson, -- F.3d --, 2014 WL 998409 (10th Cir. 3/17/14) - The Tenth affirms convictions of a longtime tax protester who was convicted of offenses resulting from his filing of liens against the real and personal property of two IRS agents. First, the court concludes that Mr. Williamson failed to preserve his argument that the jury instructions did not impose the proper mens rea requirement by arguing in the district court that the jury should be instructed that in order to find he acted unlawfully, it must find he intentionally violated a known legal duty. The Tenth decides that it was not plain error to fail to instruct the jury that in order to convict Mr. Williamson of endeavoring to impede the administration of the tax code by filing a false and fraudulent lien claim under 26 U.S.C. § 7212(a), it must find that he knew that he was acting unlawfully. Second, it concludes that Mr. Williamson was not entitled to a good-faith instruction with respect to the offense of filing a false lien on account of performance of official duties under 18 U.S.C. § 1521 because that would be inconsistent with the statutory language that the violator need only have reason to know the lien was false.

Habeas Petitioner Gets Remand for Evidentiary Hearing on IAC Claim

Milton v. Miller, 2014 WL 892890 (3/7/14) (Okl.) (Published) - A habeas petitioner gets a remand for an evidentiary hearing on an ineffective assistance (IA) of counsel claim regarding plea bargaining. The petitioner asserted that his appellate counsel should have raised trial counsel's incompetence for failing to tell him about a plea deal for 23 or 25 years when he ended up going to trial and getting a couple of life sentences, one of them without parole. At a pretrial hearing the judge mentioned that Mr. Milton had been offered a 23-year sentence prior to the preliminary hearing and had turned it down. Mr. Milton told his lawyer, who was different from the preliminary hearing lawyer, that he never heard about that offer. The prosecutor had notes which corroborated that an offer of 25 years had been made. The defense lawyer mentioned that to the judge who said: "well, that's water under the bridge now because the offer is now 40 years," which Mr. Milton didn't accept. In post-conviction proceedings, the state filed an affidavit from the preliminary-hearing lawyer who insisted he had communicated the offer and Mr. Milton had rejected it.
The Oklahoma Court of Criminal Appeals (OCCA) applied the wrong appellate IA standard, saying failing to recognize an issue regardless of merit is not enough to obtain relief. The 10th held that standard was contrary to clearly established Supreme Court law. No test that ignores the merits of an omitted claim comports with federal law. Because the OCCA screwed up, de novo review, rather than stringent AEDPA deference, applied. This was true with respect to the OCCA's ruling regarding the prejudice prong because it was tainted by its performance prong error. The federal d. ct. had rejected Mr. Milton's claim based on the lawyer's affidavit. The 10th rules that Mr. Milton met the performance prong because there was clear state law saying defense lawyers must communicate plea offers to their clients. So appellate counsel should have raised that issue in light of the record indicating Mr. Milton didn't hear about the offer. As for the prejudice prong, it was wrong for the d. ct. to simply accept the lawyer's word. There was a dispute of fact that had to be resolved at an evidentiary hearing. If Mr. Milton was believed, he would be entitled to relief because he alleged he would have accepted the offer had he heard about it and so would have prevailed on appeal after an evidentiary hearing in state court. The 10th holds Cullen v. Pinholster, 131 S. Ct. 1388 (2011), which requires federal habeas courts to only look at evidence before the state courts, does not apply here. Mr. Milton sought evidentiary hearings in state court but was denied based on reasoning that was contrary to S. Ct. law. So the d. ct. could consider new evidence.

Forging Another Person's Signature Violates Aggravated Identity Theft Statute

U.S. v. Porter, 2014 WL 868791 (3/6/14) (N.M.) (Published) - Under the aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), a means of identification includes a person's signature. So when Ms. Porter forged the signature of the union's president on a financial report she violated that statute. The definition of "means of identification" in § 1028(d)(7) includes "any name." For "any" to have any meaning it must refer to a signature. In the course of justifying its interpretation the 10th goes through a number of statutory construction rules: every word must have meaning; negative implication from the lack of the word "signature"; "including" means the list is not exhaustive; specific provisions govern over general ones.
The 10th uses Ms. Porter's own testimony to establish the mailing element for mail fraud. She testified the routine practice was to submit the reports by mail. Even if she passed the report on to someone else before it was mailed, it was enough to convict her that she caused the report to be mailed. There was sufficient evidence of wire fraud with respect to unauthorized purchases by Ms. Porter. While the government witness only testified specifically about some of the purchases being unauthorized she also testified she looked at all the purchases referred to in the indictment to determine if they were unauthorized and spoke generally of their unauthorized nature. And the witness's testimony indicated that she erred on the side of labeling a purchase authorized if there was an ambiguity. The jury could take note of the witness's conservative approach. Plus Ms. Porter used a debit card to purchase things when that was prohibited by the union and she falsified bank statements. Ms. Porter waived review of the sufficiency of the evidence for certain counts because she did not offer specific arguments or citations to the law or the record with respect to those counts.

Unpublished Decisions

U.S. v. Bustamonte-Conchas, 2014 WL 892888 (3/7/14) (N.M.) (unpub'd) - A nice pretrial release win for Mr. Bustamonte-Conchas represented by Erlinda Johnson. The decision recites some helpful principles. Mr. Bustamonte was charged with distribution of 100 grams or more of heroin, triggering the presumption in favor of detention. Judge Parker ordered his release to a halfway house with several conditions, including being kept on lockdown, tracking by GPS, a cell-phone-access prohibition and limited landline access for calls only with his attorney. In Mr. Bustamonte's favor were the facts that he had no criminal history, in 2012 he had obtained permanent resident status which required careful vetting, he is married to a U.S. citizen, there was no evidence he used illegal drugs, he earned about $5,000 a month in a car business, there was no violence involved in his alleged offense, there was only circumstantial evidence indicating his guilt and, critically, the probation office recommended release to the halfway house. On the down side Mr. Bustamonte was allegedly the leader of the heroin enterprise, and he had ties to Mexico where his adult kids lived and where he had traveled frequently. The judge found that the government had proven Mr. Bustamonte was a flight risk and a danger, but found that the stringent conditions would be enough to prevent any problems. The 10th agreed with the judge that Mr. Bustamonte had overcome the presumption by virtue of his lack of criminal history, permanent resident status and ties to the U.S. The 10th noted that, despite the presumption, the burden of persuasion stays with the government and noted in a parenthetical that a defendant's burden of production to overcome the presumption was not heavy. In response to the government's worries that Mr. Bustamonte would continue his criminal enterprise by borrowing the cell phones of other inmates, the 10th found there was no evidence the halfway house was inadequately staffed to make sure Mr. Bustamonte followed the restrictions on phone access and observed that the landline phone was monitored. In response to the government's concern that Mr. Bustamonte could escape, given the lack of armed security, how easy it is to cut off the GPS device and the fact that 5 residents had absconded in the last year, the 10th noted authorities would be immediately notified if the monitor was cut off, and the government did not show any of the absconders were subject to conditions as restrictive as Mr. Bustamonte would be subject to. The 10th stressed the government had the burden to show the conditions were not sufficient. In a footnote the 10th complained about the lack of testimony, since all evidence was presented by proffer. Judge Hartz concurred, stressing that he had to defer to the judge's fact-finding and the judge credited the expert opinion of Pretrial Services regarding the adequacy of halfway house conditions.

U.S. v. Dang, 2014 WL 804009 (3/3/14) (an.) (unpub'd) - A cautionary tale for clients to refrain from bringing money to sentencing. After sentencing and a remand of the previously-released Mr. Dang to the Marshals' custody, the marshals directed Mr. Dang to give his personal belongings to his wife or attorney. Mr. Dang placed $1,472 in cash on the counsel table. Counsel reached for it, but a deputy marshal directed counsel not to touch it and confiscated it. The judge ordered that the money remain with the marshals. Subsequently the government sought an order that the money be used as partial payment of restitution ordered in a prior case. The 10th held it didn't matter whether the deputy violated Mr. Dang's 4th Amendment rights. It's a distinct issue from the appropriate disposition of the seized cash. A restitution order creates a lien against a defendant's property that can be enforced against property in the government's possession. Mr. Dang might have some other remedy, such as a Bivens action. As for substantive and procedural objections to the application of the funds to the restitution obligation, Mr. Dang didn't raise those issues. So the 10th explicitly didn't address them.

U.S. v. Pettit, 2014 WL 804012 (3/3/14) (Okl.) (unpub'd) - Mr. Pettit could be guilty of conspiracy even if he offered to provide meth selflessly for no profit or just to help out his nephew. A DEA agent's testimony that he administered Miranda warnings to Mr. Pettit in the probation and parole office was harmless. The d. ct. thought the jury didn't really notice that bad fact and didn't want to give a curative instruction because it would only highlight the fact. It was just an isolated incident in a sea of ample evidence of guilt.

U.S. v. Norwood, 2014 WL 889615 (3/7/14) (Okl.) (unpub'd) - The S. Ct. case that authorized consideration of IA claims regarding post-conviction counsel under certain circumstances, Martinez v. Ryan, 132 S. Ct. 1309 (2012), does not entitle a defendant to appointment of counsel in a § 2255 proceeding.

New Sentencing Ordered for Defendant Who Objected to Drug Quantity Calculation

U.S. v. Harrison, 2014 WL 702119 (2/28/14) (Okl.) (Published) - The 10th Circuit reverses a drug quantity calculation. Trial counsel failed to object at sentencing, but Ms. Harrison herself objected to the PSR's quantity determination. Ordinarily this would not preserve the issue when a defendant is nominally represented by counsel, but here the district court addressed the objection raised pro se. It was enough that Ms. Harrison said she disagreed with the calculation. The issue was preserved. The district court's response was that the PSR's calculation was based on trial testimony. But, actually, it was not. Nothing at trial supported the PSR's rationale for its calculation. So the district court clearly erred by finding to the contrary, even if the trial testimony did actually support the calculation. And the error was not harmless because some of the trial evidence, even if believed, proved little regarding amounts and other evidence establishing amounts may not have been credited by the district court or the district court may not have extrapolated the way the government suggested the extrapolation should be done. It would take too much speculation to conclude the district court would have come to the same quantity determination if it had actually examined the trial testimony. Sentence vacated.

Unpublished Decisions

U.S. v. Lake, 2014 WL 715809 (2/26/14) (Okl.) (unpub'd) - This case involves the son of the defendant in the prior Lake case where the 10th Circuit accepted the government's concession that increasing the guideline range based on a judicial finding of fact violated the Sixth Amendment as interpreted in the S. Ct's Alleyne decision. In this case the son raised the same issue, but now the government believes it was wrong to make the concession it made in the father's case. This panel, which is different from the one in the father's case, refuses to decide whether the other panel was wrong. Instead it applies the law of the case, which applies to co-defendants. To disregard the law of the case the prior decision must be manifestly erroneous and manifestly unjust. The 10th Circuit says that, even if the prior decision was manifestly erroneous [which it unfortunately was], it was not manifestly unjust. So Mr. Lake Jr. gets another sentencing.

U.S. v. James, 2014 WL 762694 (2/27/14) (Col.) (unpub'd) - In this mortgage scam case the 10th Circuit previously remanded for the district court to make loss findings regarding 10 mortgagers. In the end the district court ended up only finding losses with respect to 6 mortgagers. Mr. James argued the district court should have eliminated the enhancement for 10 or more victims. But the 10th, while saying its rules about what a district court can address on remand are more expansive than some circuits, holds that the prior mandate only allowed the district court to address the loss issue. So tough luck on the victim enhancement issue. The 10th Circuit affirms the district court's loss findings, which the 10th Circuit holds were based on the mortgagers' best estimate of their actual losses pursuant to accurate instructions. In the last paragraph the 10th Circuit complains that Mr. James benefited from a "ridiculously small" restitution order and concludes: "The result here may not be ultimately fair, but any unfairness was visited on others, not James."

U.S. v. Sim, 2014 WL 783139 (2/28/14) (Col.) (unpub'd) - The 10th Circuit refuses to find the district court applied the guidelines in mandatory fashion even though the district court said: "The defendant argues this court should exercise discretion considering that the guidelines are advisory. It's still not clear to this court what that actually means because the few times I've tried to read more flexibility into the guidelines I've been reversed by the 10th Circuit." At another point during the sentencing hearing the district court acknowledged the guidelines were advisory and that was enough to absolve the district court for its problematic remarks.

It was not unreasonable to impose a sentence at the high end of the guideline range where Mr. Sim robbed two banks on the day he was released from prison after having been sent to prison for committing a bank robbery.

Green v. Hininger, 2014 WL 685382 (2/24/14) (Okl.) (unpub'd) - The prisoner did not allege facts that entitled him to relief under § 1983 where he alleged: before lancing a boil on his back the doctor described a movie where the warden allowed prison officials to torture inmates whom the administration disliked; the prisoner believed the doctor disliked him; the doctor told the prisoner the doctor would not use an anesthetic; the prisoner started to "reject the procedure"; the doctor went ahead and lanced the boil; the prisoner screamed in terrible pain; the doctor didn't care and continued with the procedure, while an observing guard laughed the entire time. This was not deliberate indifference to the prisoner's medical needs. Medical care was provided. The prisoner was just disagreeing with a medical decision, which cannot be a ground for relief.

No 4th Amendment Violation When Cops Found Gun After Dragging Defendant from Parked Car

U.S. v. Mosley, -- F.3d --, 2014 WL 804005 (3/3/14)(Kan.) - Defendant passenger had standing to contest seizure of gun found in vehicle that was a fruit of the passenger's seizure. Passenger was not seized in violation of the Fourth Amendment where officers had an anonymous tip that an occupant of the car in which defendant was sitting was holding a gun in his lap, officers approached the car with weapons raised and yelling, "hands up," and defendant responded by making furtive movements suggestive of hiding or retrieving a gun before putting his hands up. Defendant was not actually seized until he complied with officers' orders by putting his hands up and by then, they had reasonable suspicion justifying a Terry stop. In addition to the furtive gestures after the confrontation by police and the anonymous tip about the gun, the stop occurred at 3 am in a crime prone area. Officers were justified in ordering the defendant out of the car and his failure to comply gave them probable cause to arrest him for the state offense of interfering with law enforcement.

Regs Requiring Compliance with Federal Officers on Federal Property Can Be Enforced With Criminal Sanctions

U.S. v. Baldwin, 2014 WL 594036 (2/18/14) (Col.) (Published) - The 10th affirms convictions based on regulations requiring compliance with lawful directions of federal police officers on federal property and prohibiting impeding government employees' duties on federal property. In this case a commander of the Federal Protective Service stopped Mr. Baldwin on Denver Federal Center grounds to warn him about speeding. Mr. Baldwin stopped and then drove off despite commands to stop. Later he was stopped on the public streets where he refused to provide documents and was forced from his truck and handcuffed. The 10th holds the regulations did not just express policy but also could be enforced with criminal sanctions. Congress authorized regulations by the Department of Homeland Security that prescribe criminal penalties up to 30 days in prison and fines. See 40 U.S.C. § 1315(c). While the 10th suggests there might be separation of powers and Congressional delegation issues, Mr. Baldwin did not raise those. As for Mr. Baldwin's challenges, the 10th held the regulations were not too vague as applied to him, although they might be, the 10th suggests, if applied to someone who engages a federal employee in a conversation about ski conditions in the high country, which "might make criminals of us all". Even though the regulations don't mention a mens rea requirement, they probably have one and the trial court required that Mr. Baldwin "knowingly" fail to comply and impede. There was sufficient evidence Mr. Baldwin knew he was disobeying orders even though he testified he didn't hear the commands. Government witness testimony contradicted Mr. Baldwin. It was not plainly wrong to convict him even though there was no evidence the required notice of the regulations was posted. Courts were divided on the issue. And there was sufficient evidence Mr. Baldwin used his truck as an "obstacle" under Colorado law so that he was guilty of the Colorado offense of obstructing a peace officer and prosecutable under the Assimilated Crimes Act.

Unpublished Decisions

U.S. v. Velarde, 2014 WL 661422 (2/21/14) (Wyo.) (unpub'd) - The 10th reverses a meth defendant's pre-sentence release. There was no likelihood of acquittal or a new trial or a government recommendation of a non-prison sentence to justify release under 18 U.S.C. § 3143(a)(2). And there was no "exceptional" reason under § 3145(c) warranting release. That Mr. Velarde had "a few matters to take care of" was not enough. "Mere personal reasons," such as family hardships, are not exceptional.

Barnett v. Franklin, 2014 WL 642840 (2/20/14) (Okl.) (unpub'd) - A favorable procedural ruling only a habeasphile could love. No AEDPA deference applied to the Oklahoma Court of Criminal Appeals ("OCCA") ineffective-assistance-of-counsel decision where the lower court rejected the petitioner's claims on procedural grounds and on the merits, but the OCCA only denied the claims for procedural reasons. Federal courts must look to the last reasoned decision, which was the OCCA's decision. The OCCA's procedural ruling was apparently wrong. So no procedural default in federal court. And there was no merits decision to defer to. But the petitioner loses on the merits despite the lack of deference.

Unpublished Decisions

U.S. v. Deppish, 2014 WL 521262 (2/11/14) (Kan.) (unpub'd) - The 10th affirms the curfew and electronic-monitoring pretrial conditions of a child porn defendant. Rather than decide whether it was okay for 18 U.S.C. § 3142(c)(a) to mandate those conditions in all cases, the 10th decided it was okay to impose them in this case, given that Mr. Deppish was alleged to have posted sexually suggestive photos of a minor family member on the internet. The conditions removed the opportunities for undetected prohibited contact with minors. Even if one factor that was required to be considered, in this case Mr. Deppish's history and characteristics, argued against the conditions, other factors clearly outweighed that factor.

U.S. v. Chaidez, 2014 WL 553584 (2/13/14) (Okl.) (unpub'd) - The government conceded the district court committed plain error when it imposed a 4-year supervised release term under the mistaken impression that it was the mandatory minimum. Since Mr. Chaidez qualified for the safety valve, he was subject to the guideline range of 2 to 5 years supervised release. But the 10th says Mr. Chaidez did not prove it was reasonably probable the district court would have imposed a lesser term had the court known it could do so. .The district court's downward variance and imposition of a sentence at the lowest end of the reduced range did not convince the 10th otherwise. The 10th found no indication in the transcript that the district court would change its sentence, which the 10th admitted was probably because the district court didn't know it had a choice. The 4th plain-error prong (fairness-integrity- public-reputation) was not met, not only because Mr. Chaidez didn't show the sentence would have been different but also because the 10th doesn't feel being on supervised release is that big a deal and it would cause the government a lot of money to transport Mr. Chaidez for resentencing. And, besides, all of this could have been avoided if counsel would have just timely objected.

U.S. v. Saavedra-Villasenor, 2014 WL 542016 (2/12/14) (N.M.) (unpub'd) - For supervised release revocation sentencing purposes, Mr. Saavedra's violation of 8 U.S.C. § 1325 in another district constituted a Grade B violation since it was "punishable" by up to two years, given his prior violation of § 1325, It didn't matter that he was only sentenced to a year for his most recent § 1325 offense. The grade is based on the actual conduct not the actual sentence imposed.

U.S. v. Williams, 2014 WL 503545 (2/10/14) (Okl.) (unpub'd) - The district court's imposition of supervised release conditions prohibiting Mr. Williams from possessing pornography and entering strip clubs and requiring him to submit to reasonable searches were sufficiently related to keeping him from becoming a pimp, the offense for which he had been convicted.

U.S. v. Johnson, 2014 WL 542061 (2/13/14) (Kan.) (unpub'd) - The 10th affirms an upward variance from 70-87 months to 147 months for traveling to promote unlawful activity and felon-in-possession. It was not plain error to refer to Mr. Johnson's children as "illegitimate" when explaining the variance. The district court's focus was on Mr. Johnson's failure to pay support for his children, not on the parents' failure to marry. It was okay to vary upward for the support-failure as well as for Mr. Johnson's long-term unemployment, the increasing seriousness of his crimes and the failure of prior punishments to deter him.

Thiam v. Holder, 2014 WL 503472 (2/10/14) (unpub'd) - The Board of Immigration Appeals failed to adequately consider whether it was reasonable for Mr. Thiam in particular to relocate in Senegal to avoid persecution for political reasons, given evidence that Mr. Thiam had no family in the part of Senegal the Board of Immigration Appeals suggested he could go.

He v. Holder, 2014 WL 521409 (2/11/14) (unpub'd) - The Chinese government detaining Ms. He for one week, interrogating her twice, beating her, resulting in minor injuries, and prohibiting her from attending an underground church was not egregious enough to amount to persecution so as to justify asylum or restriction on removal.

U.S. v. Rayford, 2014 WL 503477 (2/10/14) (Kan.) (unpub'd) - Counsel did not act unreasonably when counsel failed to challenge the use of GPS devices. It was not reasonable to expect counsel to anticipate the United States Supreme Court would decide the way it subsequently did in Jones. The courts were divided on the issue at the time counsel was representing Mr. Rayford.