Officer's "Expert" Testimony About Credibility Was Plain Error

U.S. v. Hill, -- F.3d --, 2014 WL 1663084 (4/28/14)(OK) - It was plain error to admit expert opinion that the defendant lacked credibility during a videotaped statement he gave when interrogated about a bank robbery. An FBI special agent was permitted to proclaim to the jury his training and expertise in identifying truth and deception. He improperly testified that he had never seen an innocent person say, as Mr. Hill did, that he would rather die than face charges. The expert opined that Mr. Hill's repeated invocation of God in support of his version of events indicated deceptiveness. Experts are not permitted under Rule 702 to testify about the credibility of another person - it is the jury's function to make credibility determinations. It does not matter that the defendant's statements that the expert assessed were made out of court. There is a reasonable probability that without the improper expert testimony, the outcome of Mr. HIll's trial would have been different; the government's evidence was not strong.

Evidentiary Objections Rejected; Homicide Conviction Affirmed

U.S. v. Smalls, -- F.3d --, 2014 WL 1663081 (4/28/14)(NM) - The district court did not err in its evidentiary rulings in the trial of one of three inmates accused of killing another inmate. Evidence that Mr. Smalls told his asthmatic ex-wife, whom he temporarily prevented from accessing her inhaler five months before the murder in this case, that she should just die so he would not have to kill her was distinctive and similar enough to Smalls's verbalized intent to smother the victim here and claim the death was caused by asthma as to be "signature quality" evidence admissible under Rule 404(b). Evidence of the fact of conviction and the nature of Smalls' two prior felony convictions involving his ex-wife, i.e., aggravated battery against a household member with a deadly weapon and csp, was properly admitted under Rule 609(a)(1). A co-conspirator's out-of-court statements were properly admitted under Rule 802(d)(2)(E). A cellmate's recorded statement to a fellow inmate, made before the declarant was himself charged, about the three defendants' roles in the murder was admissible under Rule 801(d)(1)(B) and Tome. The gov't did not elicit false testimony about a plan to suffocate the victim, who was strangled instead. The jury instructions were fine. A mere presence instruction was unnecessary because the gist of it was covered elsewhere in the instructions. The gov't did not improperly vouch for the truthfulness of its witnesses by introducing plea agreements that contained truthfulness provisions. The evidence was sufficient to support the convictions. And no need for cumulative error analysis since no error was found.

Sufficient Evidence Supported Subcontractors' Mail Fraud Convictions

U.S. v. Sharp, -- F.3d --, 2014 WL 1663104 (4/28/14)(CO) - Convictions for mail fraud and conspiracy to commit mail fraud affirmed. There was sufficient evidence to support the convictions. Invoices falsely suggested that the subcontractor was being charged a higher price than was actually the case and the existence of lower, actual-priced invoices was concealed from insurers. There was sufficient evidence that the alleged omissions or misstatements in the cost estimates were "material." The district court properly refused to instruct the jury that Mr. Sharp could be convicted of mail fraud on the basis of an omission only if he had a duty to disclose the withheld fact. None of the counts were based on pure "omissions." The instructions required the jury to find the existence of a misrepresentation or pretense. An Allen instruction was appropriate. All jurors, not just those in favor of acquittal, were urged to reconsider their views. The jury did not subsequently convict on all of the counts at issue. The district court's failure to reiterate the fact that the burden of proof was on the gov't was not per se prejudicial.

There was also sufficient evidence to support the mail fraud convictions of defendant Griggs. There was no merit to his due process arguments that he lacked sufficient notice of illegal conduct under the mail fraud statute. Mr. Griggs's argument that a $500,000 fine imposed by the district court was procedurally unreasonable was unpreserved and subject to review only under the plain error standard. The district court considered the proper guideline fine range and explained its reasons for imposing a fine above that range. The district court found that Mr. Griggs prevented the probation office from discovering substantial assets and that both a hefty fine and restitution were warranted. The amount of the fine imposed was substantively reasonable.

The now-deceased Judge Holloway concurred in affirming the convictions, but dissented re: the substantive reasonableness of the fine imposed on Mr. Griggs because the district court failed to consider the heavy burden that the fine would place on Mr. Griggs's wife and daughter.

In Memoriam: Judge William J. Holloway, Jr.

According to an announcement at the Tenth Circuit's website, Senior Judge Holloway died at his home in Oklahoma City, Oklahoma, April 25, 2014; he was 90 years old. The longest-sitting judge in the court’s history, Judge Holloway gave more than 45 years of service to the court, the judiciary, and the nation. Known for his kindness, his humility, and his dedication to the rule of law, he will be greatly missed.

More information is available here.

Sentencing Court Not Required to Consider Similarly Situated State Defendants When Determining Sentence

US v. Wiseman, --- F.3d ----, 2014 WL 1599461 (10th Cir. April 22, 2014): The Tenth Circuit affirms the defendant's sentence. Defendant pled guilty to conspiracy to distribute oxycodone. Her guideline range was 57-71 months. The district court sentenced her to 48 months. On appeal, Defendant argued the district court committed procedural error by refusing to consider the disparity between her sentence and the sentences imposed on similarly situated defendants in Utah state court. The Tenth agreed with the district court that 18 USC 3553(a)(6) authorizes consideration of disparate sentences among and between federal defendants, and does not require consideration of sentences received by similarly situated state defendants, affirming its prior decision in US v. Branson, 463 F.3d 1110 (10th Cir. 2006).

Mail Fraud Convictions Affirmed

US v. Whitehead, --- Fed.Appx. ----, 2014 WL 1592948 (10th Cir. April 22, 2014) (unpublished): The Court affirms the mail fraud convictions of Mr. Whitehead. Defendant Whitehead operated an oil field supply company - "WPE" which contracted to provide certain equipment to Chesapeake Energy. WPE also entered into an agreement with Cash Flow Experts. Under the agreement WPE sent Cash Flow an original invoice for equipment sold to Chesapeake. Cash flow would pay WPE a percentage of the invoice and then collect from Chesapeake. Cash Flow would keep the difference between what Chesapeake paid and what it had given to WPE.

K.W. worked for Chesapeake,ordering and installing equipment. He arranged to get ten separators from WPE. Chesapeake then fired K.W. Several months later, he was replaced. His replacement reviewed the invoices that had accumulated, and became suspicious when he saw invoices with K.W.'s signature dated after his termination. Cash Flow became concerned when Chesapeake stopped paying invoices. Mr. Whitehead told Cash Flow the equipment had been delivered and that K.W. signed the invoices. Cash Flow learned that K.W. had been terminated from Chesapeake months earlier. In all, Cash Flow paid WPE $295,000 that Chesapeake never paid because the equipment had never been delivered.

The Tenth held: 1) Defendant's sixth amendment confrontation right was not violated by the district court's refusing to allow cross examination of K.W. and another witness, L.F, into the reasons they were fired by Chesapeake. The witnesses' testimony was arguably not critical to the government's case. Another witness testified L.F. was not involved in ordering equipment, and the jury found Whitehead guilty only of the counts that involved invoices allegedly signed by K.W. after he was fired. In addition, there was plenty of other evidence of guilt, including Mr. Whitehead's changing stories. 2) The district court did not err by denying the motion for change of venue, even though Chespeake is a large company in the Oklahoma City area. The W.D. of Oklahoma has a large jury pool, there was no evidence of media coverage, the trial occurred three years after the charges were filed, and the jury acquitted him of four counts. 3) The trial court did not err in excluding evidence of the civil judgment obtained by Chesapeake against him. The evidence was not relevant or material because it had no tendency to prove or disprove any issue in the criminal case. 4) The district court did not abuse its discretion in excluding evidence of an anonymous threatening call received by a defense witness where there was no evidence as to the caller. The Court also properly excluded extrinsic evidence of another witness's allegedly fraudulent business practices under FRE 608(b). 5) The district court did not err in refusing to instruct the jury on witness tampering based on alleged "threats" made to Mr. Galvan by FBI agents. The instruction was relevant only to credibility, which was separately covered. 6) Because there were no errors, there is no cumulative error.

"A Tale of Woe" Insufficient to Prove Ineffective Assistance

U.S. v. Tuakalau, 2014 WL 1303295 (4/2/14) (Ut.) (unpub'd) - The 10th indicates it expects very little from defense counsel when the defendant alleges ineffective assistance of counsel. Counsel was not deficient in failing to anticipate that the government would pursue a RICO prosecution against the defendant based on the offenses he pleaded guilty to and others that were dismissed pursuant to a plea agreement. This circumstance is different from anticipating deportation in Padilla because that was presumptively mandatory whereas the RICO prosecution was discretionary. And there was no prejudice shown anyway because surely the defendant would have taken the plea offer, regardless of the RICO possibility, because he faced 185 years and was guaranteed 30 under the agreement. His "rosy" prediction that counsel's pursuit of a motion to suppress his statements would have succeeded was "speculative." In any event, the RICO prosecution was eventually dismissed. The "stress, trauma and notoriety" resulting from the prosecution was not the kind of prejudice for which § 2255 relief is available under Strickland. As the 10th so sympathetically sums it up: "More than a tale of woe is required."

The Nitty-gritty of Federal Sentences, 2013 Edition

The United States Sentencing Commission has announced that the 2013 Annual Report and Sourcebook of Federal Sentencing Statistics are now available on the Commission’s website. The Annual Report provides an overview of major Commission activities and accomplishments in the last fiscal year. The Sourcebook presents tables, figures, and charts on selected district, circuit, and national sentencing data for fiscal year 2013.

Government Can Appeal District Court's Refusal to Set New Trial Date Following Remand

U.S. v. Bergman, 2014 WL 1259589 (3/28/14) (Col.) (Published) - The district court failed to proffer the requisite powerful justification for precluding the government from retrying Ms. Bergman after she prevailed in her § 2255 motion to vacate her conviction. Ms. Bergman had been represented by someone who turned out not to be a lawyer. By the time she won she had served her prison term and started her supervised release. The district court refused to set a date for a new trial. The 10th first decided 18 U.S.C. § 3731 gave the government the right to appeal the district court's decision. The lower court's refusal to set a trial date was the equivalent of a dismissal of the indictment, which is appealable under § 3731. With respect to the merits, some times habeas relief may include prohibition on retrial, for example, if: there was insufficient evidence; the constitutional speedy trial right was violated; the relevant statute was unconstitutional;, there was no jurisdiction; or retrial could not be fair even with the most competent counsel because so much evidence had been lost. But here the district court's relief was too attenuated from the right violated. The presumptively appropriate relief for an ineffective assistance claim is a new trial and the district court mentioned nothing that would overcome that presumption. Even if Ms. Bergman had completed her entire sentence, a retrial would be okay. There might very well be a due process prohibition against any more punishment, but the government could seek a conviction anyway.

Unpublished Decisions

U.S. v. Mitchell, 2014 WL 1151455 (3/24/14) (okl.) (unpub'd) - The 10th rejects a preindictment delay claim. The government indicted Mr. Mitchell for a bank robbery 9 days before the 5-year statute of limitations would have run. In the meantime Mr. Mitchell served state prison time for a drug store robbery, got out early due to exemplary behavior in prison, found a job, passed all his drug tests, began to repay court costs and began taking care of his mother who was suffering with stage 4 cancer. Despite what the 10th refers to as "this apparent reformation," the government insisted on its pound of flesh [in this case 21 months in prison]. Mr. Mitchell didn't show enough prejudice to warrant a finding of a due process violation, even though he was deprived of serving his state sentence concurrently due to the delay, because he only lost the opportunity to request concurrent sentencing. He was not entitled to concurrency and so the claimed prejudice was speculative. His prosecution was not presumptively vindictive retaliation for his assertion of his Miranda rights. The government only charged him with offenses he was guilty of. So no problem. On the helpful side, the 10th made clear a presumption of vindictiveness could arise in the pretrial context. It just hasn't seen it happen yet.

U.S. v. Webb, 2014 WL 1259600 (3/28/14) (Col.) (unpub'd) - The 10th implies substantive-reasonableness sentencing review shouldn't involve independent weighing of § 3553(a) factors by the court of appeals. While certainly the 10th is supposed to give deference to the district court's balancing, substantive-reasonableness review would be completely meaningless if the 10th couldn't say a district court gave an unreasonable amount of weight to a particular factor.

Attempted Interlocutory Appeal of Denial of Motion to Dismiss Indictment Refused

Calhoun v. Tucker, 2014 WL 930868 (3/11/14) (Okl.) (Published) - The 10th refuses to accept an interlocutory appeal of the denial of a motion to dismiss the indictment. The motion contended the indictment was obtained through the testimony of Mr. Calhoun who was testifying in reliance on the advice of an attorney who was paid by the victim of the fraud, a bank that would benefit from Mr. Calhoun's testimony. His self-incriminating testimony could get the bank off the hook for a civil judgment based on the fraud the bank participated in. The 10th finds that the appeal did not meet the requirement that the issue would be effectively unreviewable on appeal after judgment. The issue did not implicate the right to bail or the right not to be tried, such as a double-jeopardy right not to be tried twice, even though Mr. Calhoun's issue involved a remedy of dismissing the charges. It didn't matter that the rights involved were important or that success on appeal after judgment would be an imperfect remedy. A defect in the grand jury process is immediately appealable only if the grand jury ceased to be a grand jury, e.g. where there weren't enough votes for the indictment. If the 10th allowed this appeal the policy against piecemeal appeals would be riddled with exceptions. The 10th discusses a number of instances where it has allowed an interlocutory appeal. So the opinion provides a nice compendium of all the case law on the matter.

Restitution Cannot Be Modified Under Section 3563(c)

U.S. v. Wyss, 2014 WL 945169 (3/12/14) (Ut.) (Published) - The 10th reverses a lowering of Mr. Wyss's restitution amount 3 years after sentencing. Mr. Wyss, who hid from his full-time employer, TSA, that he was also working for Utah and so got paid for work he didn't do for TSA, moved to modify his restitution amount because it didn't reflect leave days he was entitled to. The district court granted the motion. But the 10th ruled that, although there are many conditions of probation that can be modified under 18 USC § 3563(c), restitution is not one of them. There are specific statutory provisions that lay out when restitution can be changed, e.g. when the victim recovers losses in a civil proceeding, and no provision to change just because the district court goofed originally. So the specific prevails over the general.

White-collar Defendant Obtains Remand for Resentencing on Acceptance, Loss Calculation

U.S. v. Evans, 2014 WL 929164 (3/11/14) (Col.) (Published) - A couple of wins for a white-collar guy. The government's refusal to move for a one-level USSG § 3E1.1(b) reduction was not rationally related to resource allocation and so Mr. Evans was entitled to the reduction. The government claimed Mr. Evans didn't truly accept responsibility because he contested the loss calculations, denying he was responsible for any losses to investors. But the government promised to move for the reduction and acknowledged in the plea agreement that Mr. Evans could challenge the loss amount. Mr. Evans had prevailed on most of his loss argument. Mr. Evans started off his real estate investment scheme on the up and up. But when cash flow problems arose he started lying about income, expenses, etc. to hide how bad things were going for the scheme. The district court was wrong to add up all the investor losses for the entire time of the scheme without regard for losses that had nothing to do with Mr. Evans' fraud. The court should have determined what loss the investors would have suffered if Mr. Evans had been truthful about the status of the securities and the underlying properties. The correct starting point was when the fraud began and the calculation should exclude lost value due to the unsustainable business model of the enterprise. The court also should have considered the effect and foreseeability of non-fraud factors, e.g. extrinsic forces such as the financial crisis. The 10th did reject Mr. Evans' claim that his infusion of 4.5 million dollars into the business should be subtracted from the loss amount. That money did not benefit the investors. It only helped to cover up the business losses.

Court Lacked Jurisdiction to Consider Denial of Motion for New Trial Where Notice of Appeal Filed Before Motion for New Trial

U.S. v. Battles, 2014 WL 929166 (3/11/14) (Okl.) (Published) - The 10th had no jurisdiction to consider the district court's denial of Ms. Battles' motion for new trial. Her notice of appeal did not refer to the denial because she had not even filed the motion yet. And her brief didn't serve as a notice because the district court hadn't denied her motion yet. She should have filed a new notice of appeal within 14 days of the denial. Ms. Battles could not meet the prejudice prong of the plain-error-reversal standard with respect to 404(b) evidence that she destroyed evidence. That 2-question piece of evidence was a small part of the 4-day trial that was never mentioned again and there was the limiting instruction, of course. There was sufficient evidence of wire fraud where Ms. Battles lied about her income to get a loan and fabricated a document to misrepresent what she did with the loan proceeds. It didn't matter that the jury acquitted her of a related count. Inconsistent verdicts are irrelevant. There was sufficient evidence of money laundering. The government didn't have to prove no untainted funds were deposited along with the unlawful proceeds. The evidence showed Ms. Battles wrote a $15,000 check to her mother two days after depositing over $100,000 of fraudulently obtained loan proceeds in her checking account, which previously had $100. The 10th declined to address ineffective-assistance of counsel claims where the record on the matter had not been sufficiently developed below.

Ms. Battles' statements during what the 10th refers to as a pretrial "Rule 11 interview" did not entitle her to an acceptance of responsibility adjustment. She only "admitted" that she was "here today for my recordkeeping." And at trial she challenged the factual element of intent. There was no reasonable likelihood of vindictiveness as the reason for the government not making a plea offer as it did for Ms. Battles' mom. It could decide plea bargaining would be a wasted effort. The 10th found it unlikely Ms. Battles was surprised at sentencing when the d. ct. imposed restitution for a particular bank. That bank had long before filed a foreclosure petition she had to have known about. And even if she was surprised, due process only requires that the results of the procedure "generally" yield accurate results. She received notice of the factual basis for the restitution in the PSR, albeit without notice of the particular victim she complained about. And she was able to present counter evidence at sentencing. There's no right to confrontation at sentencing. So Ms. Battles had no right to impeach sentencing hearing testimony. Subtracting the sales price of the home from the outstanding balance on the loan was the right way to calculate restitution.

Officers Who Brutally Subdued Detainee Who Died Not Entitled to Qualified Immunity in Civil Rights Suit

Estate of Booker v. Gomez, 2014 WL 929157 (3/11/14) (Col.) (Published) - Officers were not entitled to qualified immunity in the following circumstances: to place Mr. Booker in an intake/isolation cell after arresting him, an officer grabbed him from behind. Mr. Booker swung his elbow nearly striking the officer's head; a number of officers took him to the ground where he laid on his stomach; one officer used a "carotid restraint," which diminishes the supply of oxygenated blood to the brain and which training materials warned could cause brain damage if used for more than a minute [it was used for 2 1/2 minutes]; meanwhile another officer used a "gooseneck hold," a pain compliance technique, bringing Mr. Booker's hand behind his back; that officer handcuffed Mr. Booker and put a knee on his back applying 75 % of the officer's body weight of 190 pounds; another officer used nunchakus, a pain compliance device, securing it to Mr. Booker's ankle; then yet another officer tasered Mr. Booker's leg in "drive stun mode" for 8 seconds, 3 seconds longer than is standard; It was only after all that, 2 minutes, 55 seconds after the initial officer grab, that the carotid restraint and the nunchakus were released; Mr. Booker didn't resist. A video showed he was motionless while the officers subdued him. Officers carried Mr. Booker to a cell; they did not check to see if he needed medical attention; a minute and a half later an officer asked a nurse to examine Mr. Booker; almost 5 minutes elapsed from carrying Mr. Booker to his cell until a nurse arrived; needless to say Mr. Booker had died by then; he died from "cardiorespiratory arrest during physical restraint." The medical examiner determined that all the various methods used on Mr. Booker contributed to his death.

The 14th Amendment, not the 4th, applied. The 4th governs unreasonable seizures, the 14th, treatment of a detainee after a lawful seizure pursuant to probable cause. It was okay for the d. ct. to analyze the officers' actions in the aggregate,rather than individually since it was a group effort and the officers not only had a duty not to use excessive force, but also to intervene when they witnessed other officers using excessive force. Looking at the evidence in the light most favorable to the plaintiff, the officers used excessive force. The plaintiff didn't have to show a motive amounting to excessive zeal amounting to official abuse of power since disproportional force and serious injury were present. And there was deliberate indifference with respect to getting Mr. Booker medical attention. There was sufficient evidence the delay in getting medical help contributed to Mr. Booker's death. The officers [or at least their lawyers] had the gall to suggest they couldn't be liable on that theory because they didn't check Mr. Booker's vital signs. The 10th says the officers were in a position to know of Mr. Booker's physical deterioration, since they caused it and because of his "limp" appearance.

And of some interest for our cases, the 10th refuses to seal documents even though they were filed under seal in district court. The defendants had the burden to show some significant interest outweighed the presumption in favor of records being open to the public. The defendants proffered no reason other than the sealing in district court.

Counsel's Unpreparedness Did Not Force Defendant to Represent Himself at Trial, Divided Court Holds

U.S. v. Behrens, 2014 WL 929186 (3/11/14) (Wyo.) (unpub'd) - A divided 10th rules that Mr. Behrens was not forced to go pro se due to his attorney's unpreparedness. On the opening day of trial counsel asked for a continuance saying "there are things I would like to do in this case that I haven't done." While some of the things to do were interviewing witnesses he wouldn't have interviewed if his client hadn't wanted him to, there was one witness the attorney said he wanted to interview in his own professional judgment that he would contact during trial. The 10th finds the attorney was not incapable of rendering effective assistance. Counsel had an opportunity to contact the one witness, albeit at the last minute. But, the 10th says, "it's not unheard of to contact witnesses during trial." [It happens all the time on TV]. Also reasonable suspicion continued to justify detaining Mr. Behrens even after the officer saw a temporary registration tag on Mr. Behren's car. The officer thought it might be fake because it had faded, [as it was designed to do] except for the expiration date that was written in bold marker.

Judge Ebel dissented from the counsel ruling. The failure of counsel to contact a crucial defense witness before trial, no matter how much else counsel may have done, coerced Mr. Behrens into representing himself. Judge Ebel pointed out the district court never said in front of Mr. Behrens that counsel was prepared, only that counsel should have been prepared. There was no strategic reason for counsel to have failed to contact the potential defense witness. Judge Ebel didn't think having the opportunity to contact the witness during trial was enough to render counsel's representation effective.

Defense Statements Invited Error

U.S. v. Yazzie, 2014 WL 960899 (3/13/14) (N. M.) (unpub'd) - The 10th refuses to consider whether the district court correctly determined the mandatory minimum was 35 years because defense counsel invited the error by repeatedly stating the mandatory minimum was 35 years. The word to the wise warning is that one of the statements the 10th relied on was not in the expected sentencing pleading, but in a response to a pretrial motion in limine. Defense attorneys have to watch what they say all the time.

Sex Offender Registration Requirements Are Not "Custody" for Habeas Purposes

Calhoun v. Attorney General of the State of Colorado, 2014 WL 1015919 (3/18/14) (Col.) (Published) - Mr. Calhoun was not in custody for habeas purposes by virtue of the fact that, because of the conviction he challenged, he had to register as a sex offender. The registration requirement did not constitute a severe enough restraint on his liberty to amount to custody. It wasn't enough that he could be incarcerated if he didn't register. And, as we all know, registration requirements are remedial, not punitive.

Government's Elicitation of Arguably Improper Character Evidence Is Not Plain Error Warranting Reversal

U.S. v. Perryman, 2014 WL 945151 (3/12/14) (Okl.) (unpub'd) - The 10th was "troubled" and "perplexed" by the government's eliciting testimony from several witnesses that Mr. Perryman was a cruel and unethical boss and a wife-abuser. And it was "disappointed that an officer of the court would choose to emphasize the testimony in closing." While the rationale the government gave that it was drawing out potential biases preemptively might explain testimony that the witnesses hated Mr. Perryman, it wasn't likely the defense would have brought up the rest of the testimony. Nor did it explain the prosecutor's closing urging the jury to consider what a bad person Mr. Perrryman was. You might have guessed by now, though, that a reversal does not follow. Assuming all this might have been plain error, Mr. Perryman did not show under the plain-error-reversal standard a reasonable probability the verdict would have been different given the strength of the government's arson case: Mr. Perryman was facing financial problems;insurance would have satisfied Mr. Perryman's debts; he removed keepsakes from the club shortly before the fire and arranged for the tenant in the building to stay elsewhere on the night of the fire; and he was the last known person in the club before the fire.

Grant of New Trial Reversed Despite Government's Suppression of Brady Evidence Regarding One Witness

U.S. v. Reese, 2014 WL 1042781 (3/19/14) (N.M.) (Published) - The 10th reverses the grant of a new trial in a highly publicized firearms case in Southwest New Mexico. The 10th finds the suppressed evidence that the FBI was investigating Deputy Batts for involvement in various undescribed criminal activities was not helpful enough to warrant relief under Brady. The defense argued the investigation gave Batts an incentive to testify helpfully for the government. The 10th ruled Batts was not an important enough witness for it to matter if he were thoroughly impeached. The evidence was strong that the defendants knew the people they sold the firearms to were not the real buyers, but just straw purchasers. In the video-recorded incidents the cooperating witness picked out, ordered and paid for the guns, while an undercover agent signed the papers as though the agent was the buyer, often with help from the defendants. Batts had nothing to do with any of those events. He was critical to establishing how the investigation began, but not regarding the central issue of whether the defendants knew the agents were just straw purchasers. Batts played a minor role in the government's closings. That the jury acquitted on 24 of 28 counts did not show this was a close case regarding the particular straw-buyer convictions. The evidence was much stronger, given the video for the convicted counts and proof problems with the other counts. The 10th also made clear that review of a Brady decision by a district court is de novo, even though there's one outlier 10th Circuit case that says otherwise. Earlier precedent prevails. And the 10th observed that the level of government culpability does not matter under Brady. It only matters if it gets to the point of the government knowingly using perjurious testimony under Napue.

Court rejects Batson challenge; "childless and young" was a legitimate nondiscriminatory reason to excuse juror

U.S. v. Ganadegro, 2014 WL 1045026 (3/19/14) (N.M.) unpub'd) - In rejecting a Batson claim, the disctric court said the following: "I think the prosecutor has stated a legitimate nondiscriminatory reason [the juror was childless and young in a child abuse resulting in death case] for exercising her peremptory challenge [against a Native-American]. . . So, I'm not sure I can deny the challenge just because she's trying to maneuver or come up with a better racial composition. . . . So I'll overrule the challenge." The 10th ruled the judge did not mean the prosecutor was "trying to maneuver or come up with a better racial composition," when he said that. Rather the statement was ambiguous and read in context only meant that he couldn't grant relief just because Mr. Ganadonegro asserted the prosecutor was striking a juror for racial reasons. Understood this way, the 10th says, the judge was really just making a credibility determination. Once the 10th says it's a credibility judgment, they can't reverse it. And, besides, the 10th says, to interpret what the judge said the way Mr. Ganadonegro does would mean the judge didn't understand Batson. And that couldn't be true. On the helpful side the 10th indicates the defense can make a prima facie Batson case by inference, such as perhaps here where the juror had lots of Navajo connections, even though he didn't acknowledge he was Native American when the group was asked. The 10th also thought the government's opposition to excusing for cause another non-Native-American juror who was childless and young was not persuasive evidence of bias because that juror leaned towards becoming a police officer. So the government had a strategic interest in keeping that juror. Plus the juror indicated he could serve despite his school obligations.

It was not improper to question Mr. Ganadonegro repeatedly about not using an interpreter much at a prior trial, but using the interpreter a lot at this trial, because the defense relied heavily on Mr. Ganadonegro's lack of English proficiency. It was not "relentless" and "badgering," as the defense claimed, but rather just right.

10th Reinstates Prisoner's Civil Rights Complaint Alleging Denial of Ability of Practice Religion

Tennyson v. Carpenter, 2014 WL 1015908 (3/18/14) (Col.) (unpub'd) - The 10th reverses a district court's dismissal of the prisoner's § 1983 complaint. Mr. Tennyson kept binders of choir music in his cell. He was part of the prison choir called the "Praise Team." Singing in the choir was Mr. Tennyson's "response to the dictates of God." A policy change prohibited choir members from keeping their binders in their cells. Guards confiscated the binders and removed most of Mr. Tennyson's personal photos from the binders. Later he noticed a photo of his daughter graduating was missing. An officer refused to double-check for the photo. Mr. Tennyson filed a grievance to retrieve the photo. The response was that any missing photo was due to his misconduct in misusing the chaplain-issued binders for a non-choir purpose. Shortly after the grieving, the chaplain was directed to kick Mr. Tennyson off the choir for misusing the binders. Later the missing photo was anonymously left in Mr. Tennyson's cell. The denial of choir denied Mr. Tennyson the ability to practice his religion. It was not for the court to say whether choiring is a way to practice religion, if Mr. Tennyson believed it was. Mr. Tennyson made a case for retaliation for him filing a grievance. He also sufficiently alleged an equal protection violation because he was the only African-American in the choir and the only member disciplined for what he said other choir members had done.

404(b) evidence properly admitted; district court did not abuse discretion in refusing to sever defendants' trials

U.S. v. Shaw, 2014 WL 1047040 (3/19/14) (Col.) (unpub'd) - In this aggravated sexual abuse case, FRE 404(b) evidence of other sexual assaults and threats were admissible to show a common scheme or plan to get fellow inmates to pay for protection or be subjected to sexual abuse. It was not an abuse of discretion to refuse to sever the defendants even though some of the 404(b) evidence was not admissible against all the defendants. The 10th didn't think having less 404(b) evidence would have made a difference in the outcome of the severed trials. And, of course, there were limiting instructions to protect the defendants in the joint trial.