Unpublished Decisions
U.S. v. Beamon, 2014 WL 3933778 (8/13/14) (N.M.) (unpub'd) - Mr. Beamon was not actually detained until the DEA Agent Small, had finally subdued him by ordering him to the ground at gunpoint and he finally complied. Before then Mr. Beamon had drawn the agent's suspicion by refusing to allow Officer Tate to search his backpack and attempting to leave with the backpack, i.e., by exercising his constitutional rights. Agent Small then grabbed Mr. Beamon. They both fell down the train stairwell. Mr. Beamon then grabbed a vacuum-sealed envelope containing what appeared to be cocaine from the backpack and tried to flee. He stopped when Agent Small drew his gun on him. The Tenth notes that a detention occurs even when there is just a brief submission to authority. But here that didn't happen until Mr. Beamon surrendered at gunpoint. By that time there was probable cause to arrest him, given his removal of the envelope.
U.S. v. Howell, 2014 WL 3893339 (8/11/14) (Okl.) (unpub'd) - The Tenth admits a mistake, but it doesn't help the defendant. The Tenth acknowledges it was wrong when it said in a prior appeal that a witness testified he gave a shotgun to Ms. Howell. The Tenth used this misconception to support its conclusion that there was sufficient evidence to support Ms. Howell's conviction for possessing a firearm to further drug trafficking. Ms. Howell contended her attorney acted unreasonably in failing to petition for rehearing on account of the misrepresentation of the record. The Tenth was willing to contemplate that maybe a defendant has at least a statutory right to an attorney to petition for a rehearing. But any deficient performance did not satisfy the prejudice prong for Ineffective-assistance-of-counsel relief, the Tenth says. There was other actual, rather than made-up, evidence to support the conviction, including women's clothing in the trailer where meth manufacturing materials and firearms were found. "Hardly overwhelming," the Tenth understates, but still enough to convict, says the Tenth. Therefore no prejudice.
U.S. v. Walker, 2014 WL 3906782 (8/12/14) (Kan.) (unpub'd) - The Tenth overturns a district court's sua sponte dismissal of drug and gun charges. The district court dismissed because it believed the case belonged in state court. In what court a case belongs is up to the prosecutor, not the court, the Tenth rules. Prosecutorial misconduct might justify dismissal, but there was none in this case. The Tenth treated the issue as preserved, even though the government did not object, because the district court sua sponte resolved an issue of law on the merits. On the positive side, the Tenth refuses to remand to a different judge. There was no showing of personal bias.
U.S. v. Posada-Cardenas, 2014 WL 3933933 (8/13/14) (Col.) (unpub'd) - No relief for Mr. Posada-Cardenas despite these remarks by the district court at sentencing: "I'm distressed that for the amount of time he's been in this country, he's never bothered to try to learn English. It shows no effort to adjust to the customs of this country." While the government thought the remark was "probably unwarranted," it was a small consideration and nothing in the record indicated it was a proxy for race or ethnicity, as opposed to an observation about cultural assimilation. For you appellate geeks out there, the Tenth notes the alleged error could possibly be characterized as procedural, rather than substantive. Since defense counsel had not objected, this characterization would have sent the issue into desolate, plain-error land, the Tenth saw no need to resolve the question, since it rejected the issue under the "more lenient" abuse-of-discretion standard.
U.S. v. Varela, 2014 WL 3933878 (8/13/14) (Wyo.) (unpub'd) - It was not a deviation from Miranda for the agent to ask if Mr. Varela would mind talking to the agent, rather than asking specifically for a waiver of rights. The agent's statement: "I think we can do something. I'm just saying I can't take the charges away right now," even if it was a promise of leniency, did not overcome Mr. Varela's will. It was vague and noncommittal. The Tenth acknowledged it may have inaccurately implied the agent had the power to take the charges away. But it wasn't sufficiently misleading to render subsequent statements involuntary in light of the totality of the circumstances, including the 2 &1/2-hour-length of the interrogation in a small room, the lack of a threat of force and Mr. Varela's "relatively relaxed and comfortable" appearance.
U.S. v. Howell, 2014 WL 3893339 (8/11/14) (Okl.) (unpub'd) - The Tenth admits a mistake, but it doesn't help the defendant. The Tenth acknowledges it was wrong when it said in a prior appeal that a witness testified he gave a shotgun to Ms. Howell. The Tenth used this misconception to support its conclusion that there was sufficient evidence to support Ms. Howell's conviction for possessing a firearm to further drug trafficking. Ms. Howell contended her attorney acted unreasonably in failing to petition for rehearing on account of the misrepresentation of the record. The Tenth was willing to contemplate that maybe a defendant has at least a statutory right to an attorney to petition for a rehearing. But any deficient performance did not satisfy the prejudice prong for Ineffective-assistance-of-counsel relief, the Tenth says. There was other actual, rather than made-up, evidence to support the conviction, including women's clothing in the trailer where meth manufacturing materials and firearms were found. "Hardly overwhelming," the Tenth understates, but still enough to convict, says the Tenth. Therefore no prejudice.
U.S. v. Walker, 2014 WL 3906782 (8/12/14) (Kan.) (unpub'd) - The Tenth overturns a district court's sua sponte dismissal of drug and gun charges. The district court dismissed because it believed the case belonged in state court. In what court a case belongs is up to the prosecutor, not the court, the Tenth rules. Prosecutorial misconduct might justify dismissal, but there was none in this case. The Tenth treated the issue as preserved, even though the government did not object, because the district court sua sponte resolved an issue of law on the merits. On the positive side, the Tenth refuses to remand to a different judge. There was no showing of personal bias.
U.S. v. Posada-Cardenas, 2014 WL 3933933 (8/13/14) (Col.) (unpub'd) - No relief for Mr. Posada-Cardenas despite these remarks by the district court at sentencing: "I'm distressed that for the amount of time he's been in this country, he's never bothered to try to learn English. It shows no effort to adjust to the customs of this country." While the government thought the remark was "probably unwarranted," it was a small consideration and nothing in the record indicated it was a proxy for race or ethnicity, as opposed to an observation about cultural assimilation. For you appellate geeks out there, the Tenth notes the alleged error could possibly be characterized as procedural, rather than substantive. Since defense counsel had not objected, this characterization would have sent the issue into desolate, plain-error land, the Tenth saw no need to resolve the question, since it rejected the issue under the "more lenient" abuse-of-discretion standard.
U.S. v. Varela, 2014 WL 3933878 (8/13/14) (Wyo.) (unpub'd) - It was not a deviation from Miranda for the agent to ask if Mr. Varela would mind talking to the agent, rather than asking specifically for a waiver of rights. The agent's statement: "I think we can do something. I'm just saying I can't take the charges away right now," even if it was a promise of leniency, did not overcome Mr. Varela's will. It was vague and noncommittal. The Tenth acknowledged it may have inaccurately implied the agent had the power to take the charges away. But it wasn't sufficiently misleading to render subsequent statements involuntary in light of the totality of the circumstances, including the 2 &1/2-hour-length of the interrogation in a small room, the lack of a threat of force and Mr. Varela's "relatively relaxed and comfortable" appearance.
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