District Court Lacks Equitable Authority to Expunge "Valid" Convictions

Tokoph v. U.S., 2014 WL 7273030 (12/23/14) (N.M.) (Published) - The 10th holds that a federal court does not have inherent equitable authority to grant expungement of a valid conviction. The 10th follows U.S. v. Pinto, 1 F.3d 1069 (10th Cir. 1993), which indicated a federal court may grant expungement of an invalid conviction that for example was "unconstitutional, illegal or obtained through government misconduct. Mr. Tokoph's was a valid conviction for fraud in 1972 and so not eligible for equitable expunction. The 10th held the Federal Youth Corrections Act (FYCA), which was repealed in 1984, did not authorize expungement either. It provided for an automatic "set aside" of a conviction when the offender had successfully completed probation. The 10th feels obligated to follow U.S. v. Wacker, 72 F.3d 1453 (10th Cir. 1995), in which it held an FYCA set-aside was not the equivalent of an expungement under the Guidelines for criminal history purposes. Congress's use of the term "set aside" rather than "expunge" indicates Congress did not authorize expungement, the 10th reasons. In the course of reaching its conclusion, the 10th discusses when it must follow Supreme Court dicta. Mr. Tokoph cited statements in two S. Ct. cases that indicated the FYCA provided for expunction. The 10th has often said it is bound by Supreme Court dicta almost as firmly as the Court's outright holdings. But the indications in the S. Ct. cases in this case were not the sort of considered dicta the 10th finds compelling. At least the dicta was not powerful enough to overcome what the 10th considered direct controlling 10th precedent.

Mail Fraud Convictions, Sentences, for Pretending to be a Lawyer Upheld

U.S. v. Kieffer, 2014 WL 7238565 (12/22/14) (Col.) (unpub'd) - The 10th finds FRCP 36, which allows correction of a clerical error in a judgment, is not the proper vehicle to do what the district court did, but in the end the district court's intent is fulfilled. The district court wanted Mr. Kieffer to spend 48 months extra for committing the same fraud in Colorado that he did in North Dakota, i.e., pretending to be a real lawyer. He got 51 months in North Dakota. The 10th reversed the judge's first attempt because the guideline called for a concurrent sentence. This time he announced at sentencing that Mr. Kieffer would get a 99 months concurrent sentence. He added that the 99 months would be adjusted by the 51 months served in North Dakota. The judgment mentioned the 99 months and added the remaining sentence should be 48 months after subtracting the 51 months already served. The BOP interpreted the order such that Mr. Kieffer would only serve an extra 8 months. When the probation officer got wind of this, the officer dutifully tried to help the court correct this situation. The court eventually issued three more judgments, including a couple after learning the second judgment would result in Mr. Kieffer not getting credit for 11 months of incarceration. The court tried to use Rule 36 as the authority for all the changes. The 10th admonished that the court had done more than correct a transcription error, which is essentially the only kind of error Rule 36 can correct---the kind of error a "clerk or amanuensis" might make. Rule 36 can't be used to correct a judicial error. That sort of correction requires a formal hearing with the defendant being present in person. Here Mr. Kieffer was only present by video when the court made one of the changes, Video doesn't satisfy the presence requirement. The court could only adhere to its original orally announced sentence. So the 10th ordered that the court issue a judgment that reflected that, which would be 99 months with full credit for 11 months Mr. Kieffer served between the start of his North Dakota incarceration and the start of the Colorado case, resulting in an 88-month concurrent sentence.

The 10th found no double jeopardy problems. Mail or wire fraud is committed with each use of the mails or "wires." So Mr, Kieffer was punished for different acts in the two states. It doesn't matter that his actions in Colorado were considered in the North Dakota sentencing It's not the same as prosecution for the same conduct. The upward variance was just fine, given the judge's justification that Mr. Kieffer engaged in a pattern of misleading vulnerable victims.

The 10th holds that Apprendi and Alleyne do not forbid judicial fact-finding to determine the restitution amount. 10th precedent says restitution is a civil remedy, not penal. But the 10th panel does say "Mr. Kieffer offers compelling reasons why we might consider restitution under the Mandatory Victims Restoration Act to be penal." But precedent rules. Mr. Kieffer does prevail on his non-constitutional restitution argument. The district court ordered restitution of more than $120,000 based on losses to people other than the victim noted in the indictment and conduct before the beginning date of the scheme alleged in the indictment. The 10th rejected the government's notion that the prior fraud furthered the later scheme against the victim named in the indictment. That conduct did not reasonably occur in the course of the scheme the indictment alleged. Plus there was insufficient proof of the amounts of the ordered restitution. The claims asserted in FBI interviews were not enough absent financial records, credit card statements, canceled checks or other proof of payment to Mr. Kieffer. The government did not prove the actual losses by a preponderance. The restitution order was therefore invalid.

!0th Affirms Denial of Motion to Suppress; Allows Admission of Uncharged Conduct as "Intrinsic" Evidence; OK Offense of Pointing a Firearm At Another Was ACCA Predicate

U.S. v. Hood, 2014 WL 7172398 (12/17/14) (Okl.) (Published) - Affirmance of a suppression denial, bad-act admission and ACCA application. In procedurally helping the government perhaps, under the goose-gander principle, this decision might help the defense some day. The 10th holds that, by arguing below that the seizure and detention of Mr. Hood was a justifiable Terry stop, the government was also implicitly arguing that the officers' use of handcuffs and weapons was justified, even though it never said so. So the government didn't waive the latter argument. The 10th holds the officers were fully justified in drawing their firearms and ordering Mr. Hood to the ground to protect their own safety and maintain the status quo where: neighbors told officers a man was running from an apartment in a "high-crime" area; officers had minutes before knocked on the door of that apartment they had connected to a burglary suspect; they had identified themselves but no one answered the door; when they later encountered Mr. Hood leaving the apartment, he had his back to them wearing a winter jacket on an "unseasonably warm" day; and he frantically fumbled in his pockets, causing the officers to believe he might be trying to remove a weapon. After Mr. Hood went to the ground, he appeared to lie on top of something with his hands underneath him. When asked if there was a firearm underneath him, Mr. Hood unhelpfully responded: "I don't know." At that point it was okay to handcuff and frisk Mr. Hood to determine if he was armed.
As the 10th says, it has repeatedly upheld the use of evidence of wrongful, uncharged acts to contextualize the defendant's arrest as intrinsic evidence outside the scope of 404(b). This case was no exception. It was okay to admit evidence of the burglary investigation. It helped explain why the officers were at the apartment complex and why they would be on heightened alert. The 10th doesn't explain why those matters were relevant. Plus, the 10th finds, the evidence wasn't unfairly prejudicial in violation of 403 because the government supposedly never suggested Mr. Hood was a suspect in the burglary.
The 10th rules that. Mr. Hood's 1985 conviction for pointing a firearm at another in violation of Oklahoma law was an ACCA violent felony because it has as an element threatening the use of physical force. Using the modified categorical approach, the 10th finds Mr. Hood's guilty plea to threatening or intimidating someone with the felonious intent to injure constituted an admission of the requisite threat, whether or not, as the criminal information alleged, his intent was to injure physically or by mental or emotional intimidation.

Unpublished decisions

U.S. v. Pinson, 2014 WL 7019664 (12/15/14) (Okl.) (unpub'd) - The 10th interprets Fed. R. Crim. Pro. 36, which allows a court to correct a clerical error in a judgment at any time, in a defendant's favor. Mr. Pinson asserted in his Rule 36 motion that the district court expressed a recommendation that he be incarcerated at the Federal Medical Center (FMC) in Butner to address his mental health issues. But the judgment said "FCI Butner." Mr. Pinson contended this resulted in his placement in a facility that didn't address his psychiatric needs. The 10th holds that, if the transcript indeed reflects the judge's FMC recommendation, Rule 36 provides the remedy to correct the judgment appropriately. Even though BOP doesn't have to follow the recommendation, it will then have the judge's considered judgment, which the BOP must consider under 18 U.S.C. § 3621(b)(4)(B).

U.S. v. Bong, 2014 WL 7210999 (12/18/14) (Kan.) (unpub'd) - If you thought, as I did, that Mr. Bong was convicted of a dope offense, you would be wrong. It's a firearm case. The 10th holds that an officer's knowledge that a suspect is presently armed is sufficient standing alone to justify a protective frisk to search for other weapons. In this case Mr. Bong's possession of a folded-up pocket knife clipped to the outside of his pant's pocket justified the frisk. And for added measure, Mr. Bong's prior arrest for weapons and drug charges, the fact that he had driven away from a house under observation for drug trafficking and his "evasive body positioning" - keeping the right side of his body away from the officer, also created a reasonable suspicion Mr. Bong was armed and dangerous. The officers' subsequent use of force was reasonable where: Mr Bong backed up from the car on which an officer had ordered him to put his hands; the officer tried to maintain control of Mr. Bong's hands; they struggled; the officer gave Mr. Bong a hip toss to the ground; when it appeared Mr. Bong was about to stand, the officer kicked Mr. Bong several times in the stomach, dislodging what the officer believed to be a gun; and another officer entered the fray to restrain Mr. Bong. With respect to the admission of evidence at trial, the 10th refuses to consider Mr. Bong's plain error argument because he did not adequately argue the third and fourth prongs of the plain-error-reversal standard. He just asserted the evidence was "prejudicial." That didn't cut it.

U.S. v. Storey, 2014 WL 7172363 (12/17/14) (Okl.) (unpub'd) - The 10th finds the Fourth Amendment did not apply to FedEx employees' search of a package, even though some of the search occurred in front of the police. The officers didn't instigate, encourage or aid the search. The FedEx employees did not become government agents despite their intent to help the police and the fact that one enthusiastic employee had summoned the police about suspicious packages as many as a hundred times. Private folks are free to choose to help the government without becoming agents. There was insufficient evidence that an impending California indictment of FedEx for trafficking misbranded prescription drugs for internet pharmacies placed so much pressure on the company to cooperate that it was effectively coerced to assist the government. On the sentencing front, the 10th indicates it might be possible for a district court not to hold a defendant responsible under the guidelines for all the drugs received in a package. But here it was okay for the court to do so. Some packing warning arises from this case. The enthusiastic FedEx employee found the searched package suspicious in part because it had "an awful lot of tape" on it. Apparently drug dealers are notoriously inefficient packagers.

U.S. v. Mendoza-Haro, 2014 WL 7181235 (12/18/14) (Col.) (unpub'd) - A cautionary tale for § 5K1.1 defendants who testify. The 10th says it was okay for the district court to consider Ms. Mendoza-Haro's testimony at trial that she helped move a hundred pounds of meth over the course of 4 years. She did not testify under a grant of immunity and her § 5K1.1 plea agreement did not imply the court couldn't use her testimony in sentencing her. And the court can consider such aggravating § 3553(a) factors to limit the extent of a § 5K1.1 departure. The guidelines only preclude using § 3553(a) factors to further decrease a sentence beyond what a defendant's substantial assistance has earned--which becomes essentially the new mandatory minimum. It was okay for the Sentencing Commission to circumscribe the court's discretion in only one direction. The 10th noted it was error for the district court to refuse to consider the safety risk of Ms. Mendoza-Haro testifying. But no relief because that wasn't raised as an issue.

U.S. v. Morain, 2014 WL 7181542 (12/18/14) (Kan.) (unpub'd) - The 10th is untroubled by a 151-month sentence for a child pornography defendant. It is unmoved by the argument that the child porn guidelines are not empirical and overly harsh due to the imposition of enhancements for typical conduct. A sentence near the middle of the statutory 5-20-year range for a typical child porn defendant did not strike the 10th as unfair. Nor did the 10th think it was problematic that almost two-thirds of child porn sentences are below the guideline range. This meant one-third of such sentences were within the guideline range. So this low-end sentence was not so severe as to be substantively unreasonable.

U.S. v. Tenderholt, 2014 WL 7146025 (12/16/14) (Wyo.) (unpub'd) - Descamps does not restart the statute-of-limitations clock for filing a § 2255, the 10th declares. Descamp did not make new law that would trigger a new limitations period. Rather it only corrected the 9th Circuit's misunderstanding of the Supreme Court's prior opinions.

Hughes v. Oliver, 2014 WL 7019002 (12/15/14) (Col.) (unpub'd) - It was not a violation of due process for the state to reincarcerate Mr. Hughes after mistakenly releasing him about 18 years too early and leaving him at liberty for over a year. Generally there's no constitutional problem if the prisoner is recommitted before his sentence would have expired if the prisoner had remained in prison. What happened was not conscience-shocking. The 10th ruled that such matters are "simply part of life"; "mistaken releases resulting in reincarceration occur too frequently to raise any presumption of arbitrariness." And there was no affirmative government misconduct to constitute estoppel, despite erroneous advice given at Mr Hughes' unit-team meeting that his upcoming release was lawful. The 10th suggests that under common law Mr. Hughes might be entitled to credit against his prison term for the time he was unconfined. But Mr. Hughes didn't raise that point.

Rackley v. Blevins, 2014 WL 7210783 (12/19/14) (Okl.) (unpub'd) - One of those cases where the 10th is "sympathetic," but can't find a way to help out. Mr. Rackley was denied visitation by his wife based on what the 10th describes as procedures "reminiscent of a Kafkaesque Catch-22." Mr. Rackley was denied visitation at one facility. After he was transferred, he was told the only person who could restore visitation was the warden of his former facility. That warden declined to restore visitation because Mr. Rackley was no longer at his facility. Unfortunately, the 10th says inmates have no liberty interest in visitation and so cannot get visitation through § 1983.

Petitioner Failed to Show Prejudice from Counsel's Failure to Move to Suppress Evidence

U.S. v. Cruz, 2014 WL 7242833 (12/22/14) (NM)(published) - Court affirms denial of 28 USC § 2255 claim of ineffective assistance of counsel based on attorney's failure to move to suppress methamphetamine evidence and subsequent statements obtained as a result of a search of Mr. Cruz's residence where the executed warrant was neither signed nor dated by the issuing state judge. There was no evidence that the judge was misled or wholly abandoned his judicial role, that the affidavit lacked indicia of probable cause, or that the warrant failed to particularize the place to be searched or the things to be seized. It was objectively reasonable for the executing officers to believe the warrant was valid. So there was no reasonable probability under Strickland's second prong that the result of Mr. Cruz's criminal proceeding would have been different if counsel had filed a motion to suppress.

Vindictive Prosecution Claim Rejected; Remand for Resentencing In Accord with Agreement Ordered

U.S. v. Catrell, 2014 WL 7242835 (12/22/14) (Kan.)(published) - Mr. Catrell was free to accept or reject Rule 11(c)(1)(C) agreement to 132-month sentence after addition of new charges subsequent to withdrawal of prior guilty plea, so the Court rejects his claim of vindictive prosecution. Despite parties' agreement to 132-month sentence based on 24 months for aggravated identity theft, to run consecutively with 108-month sentence for fraud and money laundering, the district court imposed 132 months total, but ordered 54 months on identity theft and 78 months on the other charges. The imposed sentence was illegal because the statutory maximum on identity theft is 2 years. The district court is ordered to resentence Mr. Catrell on all counts in accordance with the plea agreement.

Search Warrant Based on Informant's Tip OK'd

U.S. v. Long, 2014 WL 7240718 (12/22/14) (Okla.)(published) - Search warrant affidavit provided probable cause based on confidential informant's report of recent observation of cocaine packaged for distribution at the apartment to be searched. It's fine that the defendant was described only as a "Black male" because the contraband was observed at the place to be searched; it was unnecessary for the affidavit to link the defendant to that place. It was also unnecessary for the government to identify the informant or to show independent police investigation about the alleged wrongdoing given the adequacy of the information provided showing the informant's prior accuracy and credibility. The district court properly denied a Franks hearing because Mr. Long failed to make an adequate evidentiary showing that the officer recklessly or intentionally supplied false info in the affidavit. And anyhow, the magistrate judge interviewed the informant ex parte and determined that testimony from the informant would not help the defense. The informant was only a tipster, not a participant in or witness to the charged crime. Admission of a compact disc found near the cocaine that was entitled "Cokeland" with defendant's picture on the cover was sufficiently probative to warrant its admission into evidence despite possibility of unfair prejudice.

Unpublished decisions

U.S. v. McClung, 2014 WL 6892687 (12/9/14) (Col.) (unpub'd) - Something to keep in mind when our clients want to apologize. The 10th says it was okay for the d. ct. to consider as a factor against Mr. McClung that, although he wrote a nice letter of apology to the court on the eve of sentencing, he never apologized earlier to the victims when he had the chance.

U.S. v. Greenwood, 2014 WL 6980914 (12/11/14) (Col.) (unpub'd) - The 10th finds no entrapment as a matter of law. The jury acquitted Mr. Greenwood of the first drug transaction, but convicted him of the 2nd and 3rd transactions. Mr. Greenwood argued any predisposition to sell drugs on the later occasions was the product of improper government conduct with respect to the first transaction. But the 10th found sufficient differences between the first and the later transactions in terms of where and when [11 and 19 days later] they occurred such that the first deal was not part of a continuous course of conduct. The 10th refuses to adopt a rule that once entrapment occurs a defendant is immune from culpability thereafter. The 10th also noted Mr. Greenwood had a prior drug-sale conviction, multiple cell phones, large amounts of cash, guns, drugs and drug paraphernalia.

Sanders v. Dowling, 2014 WL 7003775 (12/12/14) (Okl.) (unpub'd) - The Supreme Court's decision in Missouri v. McKneely, 133 S. Ct. 1552 (2013), which required a warrant for a DWI blood draw under certain circumstances, did not restart the statute of limitations. The time limit would restart only if the decision would apply retroactively. Teague prevents the decision from being retroactive. It's a procedural rule that is not a watershed rule, since it does not decrease the risk of an inaccurate conviction.

U.S. v. Oyegoke-Eniola, 2014 WL 6980976 (12/11/14) (Kan.) (unpub'd) - The 10th says it construes pro se pleadings liberally even if the pro se person is highly educated, in this case, with a B.S. in computer engineering. In this case, the d. ct. said at sentencing: "I have seen all kinds of people coming through court from foreign countries but not with your education and intelligence and level of living your life committing crimes," and also: "Of all people coming to the U.S. to get into good schools, you didn't deserve that, so I'm going to do everything to get you out of the country permanently." Assuming this evidenced reliance on the impermissible factor of alienage, there's no relief under the plain error standard of review because there was no effect on Mr. Oyegoke-Eniola's substantial rights, according to the 10th, given the sentence of time-served and a supervised release term within the guideline range. Although the special condition of handing him over to immigration officials upon completion of prison might seem like it affects his substantial rights, it's not an unusual condition. In other words, no plain error relief if a defendant gets the usual within-guideline treatment.

Pinson v. Berkebile, 2014 WL 6892179 (12/9/14) (Col.) (unpub'd) - A procedural victory for a prisoner in a § 1983 civil rights suit. Mr. Pinson alleged he could not exhaust his remedies in the federal prison system because the prison told him he couldn't fill out the grievance form until he received a disciplinary hearing officer (DHO) report and he never received a DHO report. The d. ct. was wrong to find a lack of exhaustion based on BOP's claim that he did get the DHO report and the policy that he receive such a report. It was not proper for the court to simply accept BOP's word over the prisoner's that he received the DHO report. That the rules require providing the report doesn't mean the rules were followed in Mr. Pinson's case. Also, the court should consider whether exhaustion is waived because the prison didn't provide Mr. Pinson with staff representation to help him exhaust.

U.S. v. Mencia-Hernandez

U.S. v. Mencia-Hernandez, 2014 WL 6791249 (12/3/14) (Ut.) (unpub'd) - It was not plain error for the district court not to ask Mr. Mencia-Hernandez if he wanted to allocute with respect to his supervised-release-violation sentence. While Rule 32 requires the court to address the defendant personally to seek allocution for an initial sentencing," Rule 32.1 only requires that the defendant be afforded an opportunity to allocute. Here the court personally addressed Mr. Mencia-Hernandez to seek allocution during the portion of the consolidated hearing set aside for the initial sentencing for a new offense, but did not again seek allocution during the revocation part of the hearing. This was not plain error, especially because the issues for sentencing on the new offense and the revocation were intermixed. Plus no harm done, since Mr. Mencia-Hernandez only said he wanted to be with his mom in Honduras for his allocution. He didn't suggest he would say something more persuasive with respect to the revocation sentence.

Hawker v. Sandy City Corp.

Hawker v. Sandy City Corporation, 2014 WL 6844930 (12/5/14) (Ut.) (Published & Unpub'd) - Oddly, the majority's decision is unpublished, but Judge Lucero's concurrence is published. The majority held that an officer's use of a twist-lock (twisting the suspect's hand to place tension on the arm to get compliance) on a 9 year-old, 67 pound, boy was not excessive force. The boy had been caught with someone else's IPad. The principal called the police. The principal told the responding officer she wanted to file charges against the boy. The officer said to the boy: "we can do this the easy way by you talking to me or the hard way by you not talking to me." The boy said nothing. The officer grabbed his arm and yanked him up. The boy grabbed the officer's arm. The officer used the twist-lock maneuver, pushed him against the wall and handcuffed him. Because the officer could view the boy's arm-grabbing as resisting arrest and escalating a tense situation, it was objectively reasonable for the officer to do what she did. The majority explains that stories in the news show how violent little children can be. The boy's "age and small demeanor do not necessarily undermine an officer's concern for safety and need to control the situation." The majority acknowledges the "unfortunate" nature of the facts in this case. It's "regrettable" that an officer feels the need to resort to such physical force. But "equally regrettable is the disrespectful, obdurate, and combative behavior of that 9-year-old child."

Judge Lucero agrees that 10th precedent requires the majority's holding. But Judge Lucero says he disagrees with that precedent. He pleads for dealing with petty crimes by minors "in a more enlightened fashion" to not automatically extend qualified immunity to officers for the kind of conduct involved in this case. He observes that this kind of treatment could leave permanent scars and unresolved anger and have a far-reaching impact on the boy's future. The judge asks: 'Why are we arresting 9-year-old schoolchildren?" He points out that, although the recent tragedies at schools might justify certain security measures, they don't require elementary schoolchildren to be "manhandled into a criminal law system in which they are treated as if they were were hardened criminals." Judge Lucero bemoans the practice of using the police to take care of matters that could be handled by school personnel, thus creating the school-to-prison pipeline. He worries that depriving children of their education by suspending them and sending them into the criminal justice system will deprive them of the opportunity to succeed. He concludes: "Our present jurisprudence is sending the wrong message to schools. It makes it too easy for educators to shed their significant and important role in the process and delegate it to the police and courts."

Jones v. Trammell

Jones v. Trammell, 2014 WL 6844824 (12/5/14) (Okl.) (Published) - The 10th affirms an Oklahoma state death sentence. The 10th chooses to consider an issue it thinks Mr. Jones may have waived by not raising it below, saying the waiver rule is not inflexible and the 10th has discretion to forgive waiver. The 10th interprets the Oklahoma Court of Criminal Appeals' ("OCCA") ruling to be based on the prejudice, not the performance, prong of Strickland. The 10th relies on the court's focus on the likely effect of the testimony at trial of the witness counsel didn't find and call. The 10th's conclusion dooms Mr. Jones who didn't even argue the prejudice decision satisfied AEDPA's standard. The 10th finds reasonable the OCCA's determination that the inmate witness's credibility would be questionable given that he was a convicted child abuse murderer and had little to lose by perjuring himself with claims that were impossible to corroborate. Plus, the witness's version of what the state's key witness told him contradicted the version of another inmate witness. So the witness would only have established that the only eyewitness who placed Mr. Jones at the scene of the carjacking "changed his story to suit his own needs." This was not valuable to Mr. Jones, the 10th reasons, because the OCCA found this was "already clear to the jury" based on counsel's cross-examination. In any event, the 10th thought other evidence, besides the key witness's, was 'quite strong."

Unpublished Decisions

Madrid v. Wilson, 2014 WL 6057162 (11/14/14) (Wyo.) (unpub'd) - A claim based on a memo discovered in the prosecutor's files by the Utah Innocence Project was untimely. Mr. Madrid argued it wasn't until another favorable memo was discovered that he could file his § 2254 petition and that the Innocence Project was short on resources. But the 10th, while "sympathetic" to a petitioner's desire to avoid being penalized for successive filings by building as strong a case as possible before filing, the factual predicate for the claim was the discovery of the first memo. And "lack of resources" and negligence don't cut it for equitable tolling.

On the other hand, the second memo claim was timely. The state could make the timing procedural argument that the district court rejected, even though it didn't cross-appeal. But the Innocence Project could not be faulted for not finding the memo when it first got the file containing the memo because the file was in a file related to a different case of the same DA's office. The 10th rejects the district court's rationale for rejecting the Brady claim that the memo was not material because it described another suspect with some features that Mr. Madrid had. There were many features he didn't have. But nonetheless the memo wasn't material. The memo was a vague description of a possible alternative suspect "weighing lightly against the substantial evidence against Mr. Madrid." The 10th finds the memo wouldn't further discredit one of the state's witnesses because she had already been thoroughly impeached at trial. The memo evidence didn't match the direct evidence linking the alternate suspect.

Keith Township v. Freightliner, 2014 WL 5906561 (11/13/14) (Kan.) (unpub'd) - The 10th upholds the admission of fire expert evidence. It's not appropriate to exclude an expert witness on credibility grounds. That's the jury's province. Also the fact that another expert would have investigated the mater differently doesn't make an expert's opinion unreliable, so long as the method used is scientifically sound. It was not an abuse of discretion to exclude lay testimony because it was too complex for lay folks.

Upward variance in wire fraud case affirmed

U.S. v. Kujat, 2014 WL 5906174 (11/14/14) (Col.) (unpub'd) - The 10th affirms an upward variance of 19 months from the top of the guideline range to 60 months for wire fraud. The district court relied in large part on the number of victims, which the guidelines consider. But the district court wasn't happy with the guidelines and noted the nature of the victims---ordinary working people---which the guidelines don't consider. And it was okay for the court to consider that Mr. Kujat had 9 felony convictions, even though "he had experienced some time without the evidence commission of criminal offenses."

Brown v. Parker, 2014 WL 5840359 (11/12/14) (Okl.) (Published) - Mr. Brown was not entitled to § 1983 relief for being incarcerated beyond the term of his sentence. He was sentenced to two two-year concurrent sentences by two different judges. The judge in the second case issued a subsequent order saying Mr. Brown must be released when his first sentence was complete. But that order did not comply with Oklahoma law which forbids "coterminous" sentences. Even though the sentences were concurrent, they finished at different times because they began at different times.

Attorney found in contempt, fined $2K for missing sentencing hearing

U.S. v. Hernandez, 771 F.3d 707 (11/14/14) (Col.) (Published) - The 10th affirms a direct contempt finding and $2,000 sanction for an attorney's absence from a sentencing hearing. After a sentencing hearing was rescheduled by virtue of an order which said no further continuances would be granted, Mr. Velasco, the attorney, arranged a family vacation out of town. The district court denied the attorney's motion for a continuance. Mr. Velasco did not show up for sentencing and his client did not accept the substitute counsel Mr. Velasco sent. Mr. Velasco argued on appeal that the d. ct. should have followed the procedures required for indirect contempt. The 10th reviewed for plain error because Mr. Velasco, although he objected on other grounds, never mentioned the distinction between direct and indirect contempt. Any error was not plain because this situation was different from another case where indirect contempt procedures were warranted for an attorney who was five minutes late. In this case, "the absence was a part of a series of larger events suggesting a conscious disregard of the court's procedures." Plus, the 10th ruled, Mr. Velasco got ample opportunity to defend himself, so he got enough procedure such that the contempt finding does not affect the fairness, integrity or public reputation of judicial proceedings.

U.S. v. Gay, 2014 WL 5840303 (11/12/14) (Okl.) (Published) - A district court has no authority to consider a collateral constitutional challenge to a sentence in an 18 U.S.C. § 3582(c)(2) proceeding, the 10th holds. Despite this holding, for good measure, the 10th determines Mr. Gay's 262-month sentence is not cruel and unusual punishment, even if it depends on an unfair 100:1 crack to cocaine ratio [his crack quantity was so high he did not qualify for § 3582(c)(2) relief under a different ratio].