Unpublished Decisions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.