Must Read Decision on Double Jeopardy, Restrictive Supervised Release Conditions, and Restitution

U.S. v. Dunn, 2015 WL 525698 (2/10/2015) (UT)(Published)(slip opinion here): A successful defense appeal on Double Jeopardy, unnecessarily restrictive supervised release conditions and restitution in a possession and distribution of child pornography case.

A jury convicted Dunn of possession, receipt and distribution of child pornography. He challenged the trial court’s jury instruction on distribution. That instruction told the jury that “when a person knowingly makes images available on a peer to peer file sharing network, such as Limewire, this is considered distribution of the images. The panel held that the instruction was proper because “active distribution or transfer of possession to another is not required to prove distribution under § 2252A(a)(2).”

Dunn also argued that his convictions for receipt and possession of the same illicit material violated the Double Jeopardy Clause. Applying the plain error standard of review, the panel agreed with Dunn and ordered the district court to vacate one of Dunn’s convictions.

Dunn challenged supervised release conditions that restricted possible future employment in his prior field of computers. The district court had ordered that he participate in the probation and pretrial services computer and internet monitoring program. This program imposed numerous “robust restrictions” on his use and access to both computers and the Internet and allowed Probation to monitor that use. Again, using plain error analysis, the panel held that the district court had violated its “mandatory” duty “to specifically find that [the occupational] restriction is minimally restrictive.” The panel emphasized that the circuit’s prior decisions “unambiguously require supporting findings when courts impose special conditions of supervised release.” It noted that the district court may have not even considered the effect of the computer monitoring program on Dunn’s “prospects for future employment or his ability to pay restitution to his victims.”

Finally, the panel set aside the district court’s restitution order because it violated the restitution analysis and rules in Paroline v. United States, 134 S.Ct 1710 (2014). The ubiquitous “Vicky”(represented by Paul Cassell and the University of Utah appellate law clinic) demanded Dunn pay $583,955 of the $1.3 million of damages she allegedly has suffered. According to Vicky, $583k is the amount of her total losses minus the amount of restitution she has garnered from other defendants. Dunn balked at this amount and asked the district court to compel her to “produce a more up-to-date economic report regarding damages and regarding the damages Mr. Dunn caused as a result of his underlying criminal behavior.” (Meaning that these reports did not clearly distinguish the primary harms associated with her original abuse from those secondary harms flowing from the dissemination of images of her online.) The panel found the district court should have granted Dunn’s request. It also ruled the court incorrectly found Dunn jointly and severely liable for the entirety of Vicky’s injuries because he was a “distributor” of her images. The trial court was wrong because it “clearly h[eld] Mr. Dunn liable for the conduct of thousands of geographically and temporally distant offenders acting independently, and with whom he had no contact, in contravention of Paroline’s guidance.”

Perhaps, most importantly, the panel commented that the district court unduly emphasized Dunn’s role as a “distributor” when not all distributors are on equal footing. Coming full circle back to the challenged instruction, the panel said that a jury found Dunn distributed the image by merely placing it into a shared folder on a peer to peer network. In assessing an accused’s relative role in the causal process for restitution purposes, the district court should consider the facts underlying that conviction—i.e., did the government show that others had actually downloaded files from the accused and, if so, had only one or two other people downloaded those images from him, or had hundreds or thousands over a period of years. The panel concluded that these factors are important to consider because “the clear rationale of Paroline is that a defendant should be held accountable for the measure of losses that he individually has caused.” Restitution should reflect the consequences of an accused’s own conduct and he should not be held accountable for those harms initially caused by the pictured person’s abuser.

One Shot, Only One 924(c) Violation

U.S. v. Rentz, 2015 WL 430918 (2/3/2015) (en banc) (UT)(published) (slip opinion here): After Rentz fired a single gunshot that wounded one victim and killed another, he was charged with two crimes of violence—assault and murder—and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Rentz moved to dismiss the second § 924(c) count. The district court granted his motion, holding that multiple § 924(c) charges arising from a single use of a firearm are impermissible. The government appealed the pre-trial dismissal of the second § 924(c) count. A 10th circuit panel reversed the district court order. The court then granted Rentz’s request for an en banc rehearing to determine whether he can be charged with two § 924(c) offenses for using a gun only once. Writing for the majority, Judge Gorsuch said the question presented was whether, as a matter of statutory interpretation, § 924(c)(1)(A) authorizes multiple charges when the parties admit there’s only a single use, carry, or possession. The opinion is quite detailed with in-depth discussions of grammar, units of prosecution, legislative history and the rule of lenity. Ultimately, the court decided that when a case involves only one use, carry or possession of a firearm, the government may "seek and obtain no more than one § 924(c)(1)(A) conviction."

Death Row Inmates' Challenges to Oklahoma Execution Method Rejected

Warner v. Gross, 2015 WL 137627 (1/12/15) (Okl.) (Published) (slip opinion here) - The 10th paves the way for Oklahoma's execution of Mr. Warner and three other death row prisoners due to be killed on or before March 5th. It refuses to grant a preliminary injunction to stop the impending executions based on a challenge to the use of midazolam [which Oklahoma wanted to use because it couldn't get the ol' tried and true sodium thiopental, which the manufacturers are refusing to provide for executions], and the execution protocol. The 10th did not find the requisite likelihood of success on the merits. Oklahoma investigated the horrifying execution experience of Clayton Lockett. The execution team over the course of nearly an hour made at least 12 attempts to get IV access to Mr. Lockett's cardiovascular system They thought they finally succeeded. They injected the midazolam and determined it had rendered Mr. Lockett unconscious. It then administered the paralyzing agent. Partway through the injection of the third drug that is supposed to induce cardiac arrest, Mr. Lockett suddenly began to move and said: "This sh.. is f....ing with my mind. The drugs aren't working." The team noticed a large area of swelling near the IV access point. The team tried to insert the IV somewhere else. They eventually terminated the execution process, but Mr. Lockett died 43 minutes after the midazolam was first injected. Mr. Warner was scheduled to be executed right after Mr. Lockett. But Oklahoma postponed his execution instead. The 10th described this whole experience as a "procedural disaster."

Oklahoma determined the problem with the Lockett execution was not the midazolam, but the failure to insert the IV properly and not properly determining if Mr. Locket was really unconscious. But, despite the problems, the concentration of midazolam in Mr. Lockett's blood was greater than the concentration required to render the average person unconscious. Oklahoma instituted new procedures so it could do a really bang-up job of killing people: a higher dose of midazolam and detailed procedures for establishing IV access, administering the chemicals and dealing with "mishaps." The plaintiffs contended midazolam has a ceiling effect [there's a certain dosage beyond which there's no incremental anesthesia effect] and a risk of paradoxical reaction [agitation, etc.]. The 10th observed that some risk of pain is okay. The plaintiffs had to show an objectively intolerable substantial risk of harm. Given the d. ct.'s rejection of the plaintiffs' experts' opinion and acceptance of the state's only expert [he was a dean after all] saying the dosage of midazolam would render people unconscious because there was only a ceiling effect for the spinal cord, not the brain, the plaintiffs were not likely to show an Eighth Amendment violation. The errors in the state's expert's testimony [misidentification of the reported dose range of midalozam and the federal agency responsible for certain standards and his incorrect claim about a certain chemical effect of the drug] were not sufficiently serious to render his testimony unreliable, the 10th finds. The 10th also affirmed the d. ct.'s conclusion that the new procedures would likely prevent any future problems with executions. And it was impressed by the fact that midazolam had been used "successfully" 12 times. Plus the plaintiffs had not met their burden to proffer alternative constitutional procedures that would kill them without pain. They suggested the use of drugs that were not available to the state. There is no requirement that a state's procedure have already been tried by many other states. Otherwise states would never be able to kill people in new ways. In a footnote, the panel notes that not one of the 10th Circuit judges requested an en banc poll on the questions presented.

Student Summarily Dismissed from Law School for Lying on Application Was Not Denied Due Process

Brown v. University of Kansas, 2015 WL 150271 (1/13/15) (Kan.) (unpub'd) (slip opinion here)- The 10th affirms the granting of summary judgment against a law student who claimed his expulsion from school for lying about his prior criminal record violated due process. In his law school application, Mr. Brown denied being convicted of any non-traffic offense. In fact, he had convictions for battery and a DUI. For some undisclosed reason, after being accepted and starting classes, Mr. Brown amended his application to disclose his prior convictions. The school sent a letter to Mr. Brown seeking a written response to its proposed dismissal from the school for lying on the application. Mr. Brown demanded a hearing. The 10th holds that there was enough due process basically because no purpose would be served by more process since Mr. Brown admitted to lying on the application and that was a proper ground for dismissal.

Court Rejects Argument that Condition of Supervised Release was an Improper Delegation of Authority

U.S. v. Richardson, 2015 WL 221612 (1/16/15) (Okl.) (unpub'd) (slip opinion here)- The supervised release condition that Mr. Richardson reside at a halfway house for up to 180 days at the direction of the probation officer was not a plainly erroneous delegation of authority to the probation officer. Mr. Richardson did not show the district court would have imposed a lower term at the halfway house without the delegation. Indeed, the court did Mr. Richardson a favor by giving the probation office a chance to cut short his 180-day term

Double Jeopardy Challenge to Retrial Rejected

U.S. v. Burciaga, 2015 WL 150344 (1/13/15) (N.M.) (unpub'd) (slip opinion here) - The 10th rejects a double jeopardy challenge to a retrial after the declaration of a mistrial. Mr. Burciaga testified at trial he pleaded guilty in other cases because he was guilty but didn't consider pleading guilty in this case because he was innocent. The following day on cross, the prosecutor asked: "If you say you refuse to accept a plea, why did your attorney propose a plea deal?" The defense objected. Judge Vazquez proposed a mistrial. The prosecutor opposed, saying he had an e-mail from defense counsel saying Mr. Burciaga would take a 5-year deal "in a heartbeat." The parties worked on a jury instruction, but ultimately the judge decided the question caused too much prejudice to be cured. The judge subsequently denied a defense motion to dismiss on double jeopardy grounds, contending the prosecutor deliberately caused the mistrial. The judge denied the motion, finding the prosecutor did not subjectively intend to force Mr. Burciaga to request a mistrial. The 10th acknowledged the question was more problematic than the classic prosecutor question: "What happened next?' But the record supported the judge's subjective-intent conclusion. Although the prosecutor was experienced, he just carelessly came to the conclusion after some inept research that Fed. R. Evid. 410 [prohibiting the admission of statements made during unconsummated plea negotiations] allowed the improper question. The prosecutor's remark during the first trial that he had to "fight and claw to get my case presented fairly," did not mean the government thought it had a weak case and would rather to try the case again. The prosecutor had an objective basis to believe the heroin distribution case was going well for the government. The fact that the government presented more incriminating evidence at the second trial than it did at the first didn't establish the prosecutor's bad motives either. Ultimately, the 10th says, it couldn't overturn the district court's view of the facts.

Pretrial Release Order for Non-citizen Drug Defendant Affirmed

U.S. v. Vasquez-Garcia, 2015 WL 170247 (1/14/15) (Kan.) (unpub'd) (slip opinion here) - The 10th affirms an alien meth defendant's release. Mr. Vasquz-Garcia had been a long-time permanent resident until he went to Mexico. Three years later he voluntarily returned to the U.S. after his green card had expired. The 10th refused to reweigh the lower court's flight risk determination, given Mr. Vasquez-Garcia's voluntary return knowing he was under indictment and his taking many steps towards renewal of his green card for which he was eligible. Nor did the 10th feel like reassessing whether Mr. Vasquez-Garcia posed a threat to potential witnesses

Summary Judgment for Officer Reversed in Civil Rights Case

Baig v. Hargis, 2015 WL 221610 (1/16/15) (Kan.) (unpub'd) (slip opinion here)- In a § 1983 case, the 10th reverses a summary judgment in favor of an officer. The 10th upholds the proposition that in determining whether there is probable cause an officer has an obligation to investigate relevant, easily accessible facts. In this case, a loss prevention officer ("LPO") at a Macy's store reported to the police that three people, including a woman who was possibly Asian, were acting as though they were going to shoplift some items [e.g. taking sensor tags off, stuffing a purse with stuff]. The LPO did not say any of them had left the store. When the officer arrived, he spotted Ms. Baig, who was Asian, getting into her car in the parking lot. Aside from her race, every other aspect of her appearance conflicted with the LPO's description of the Asian woman. She wore dress slacks, not shorts, a salmon/pink shirt with grey dots, not a peach shirt, and leather sandals, not flip flops. Her hair was down, not pinned up, did not wear sunglasses and had a brown, not a burgundy, purse. Nonetheless, the officer confronted her and got her to get out of her car. He then handcuffed her and told her she was under arrest. Within a minute the officer got a dispatch that all three suspects were still in the store. The 10th holds a reasonable officer would not have ignored all the obvious differences between Ms Baig and the suspect. At worst, the 10th says, given the lack of exigent circumstances, the officer maybe could have temporarily detained her while easily determining all the suspects were still in the store. Or he could have asked for permission to search her bag for stolen items. So the officer's conduct, as alleged by Ms. Baig, clearly violated the Fourth Amendment.

Drug Conviction Affirmed; Agent's "Expert" Testimony Ok'd; Prosecutor's Misstatements of Evidence in Closing Did Not Warrant Reversal; Defendant Waived Counsel for Sentencing

U.S. v. Vann, 2015 WL 221618 (1/16/15) (N.M.) (Published) (slip opinion here) - The 10th affirms a PCP conviction overseen by 10th Circuit Judge Kelly, sitting as a district judge by designation. Agent Small found on the train bottles of codeine without labels and bottles with PCP inside a gift-wrapped box Mr. Vann was carrying. Mr. Vann told the agent he knew there was codeine, but he did not know the box contained PCP bottles. At trial the parties disputed whether Mr. Vann knew he possessed the bottles of PCP. First, the 10th affirms a denial of a Batson challenge on the grounds that the judge's "streamlined" ruling was sufficient. The government justified its excusal of the only black venire member for the trial of a black man on the grounds that the juror didn't completely fill out his questionnaire, was not educated enough, was unemployed and seemed dazed and disengaged during voir dire. Before hearing from the defense, the court found these "were nonracial reasons that made sense." The defense contended the juror was attentive, not dazed. The court rejected the challenge without addressing the demeanor issue. After trial the defense renewed its Batson challenge pointing out the excused juror had two years of college and there was a non-black person who became a juror who was also unemployed and didn't fill out everything on the questionnaire. The defense argued the court had not made a Batson third-step discrimination finding. The district court ruled its "made sense" finding was implicitly the requisite finding. It did not make a finding on the demeanor or comparative-juror analysis except to say the latter didn't make a difference. Importantly for future reference, the 10th thought the defense should have laid out all its Batson case by the end of jury selection. At that point in time the defense had only challenged one of the 4 reasons the government gave for its excusal. Nonetheless the 10th went on to hold, in conflict with other circuits, as the 10th recognized, that 10th precedent does not require an explicit discrimination finding. The 10th was satisfied that the court engaged with the evidence presented by both sides, as it was required to do, even though it didn't explicitly do so, essentially because judges are presumed to know the law. That should take care of most defense complaints. In a footnote the 10th also says a trial court doesn't even necessarily have to give the defense a chance to support its Batson challenge, as long as the judge considers all the relevant matters.

Second, the 10th held that Agent Small's testimony that PCP wholesalers do not typically package PCP for buyers [thus indicating Mr. Vann, who was a buyer, must have packaged the PCP] was based on reliable data primarily because the agent was familiar with drug dealers in general and the district court vetted Small through a pretrial Daubert hearing and at trial, providing an opportunity for counsel to present their cases why Small should or should not testify. The 10th says the agent had "numerous PCP arrests as well." In fact, he testified he had 15 to 20 arrests over the course of 29 years and admitted the drug world changes often! The 10th treats an argument under the "Santa Muerte" case, Medina-Copete with little sympathy holding that excluding expert officer testimony in general, "is the exception, not the rule."

Third, the 10th essentially holds that it will never reverse a conviction due to prosecutors misstating facts in closing as long as there is an instruction that what attorneys say is not evidence. In this case the 10th has trouble even finding a misstatement. The prosecutors argued that if Mr. Vann only thought he had codeine he could have just taken a plane instead of a train. So he must have known he had PCP. Agent Small testified you could get a codeine bottle with a prescription label past TSA. He never testified you could get codeine bottles past the TSA without a label. And pretrial he testified he came across tons of people carrying codeine on the train. The 10th thought this was just arguing based on reasonable inferences from circumstantial evidence, not lying. "Given the abstract nature of mens rea, the 10th proclaims, this tactic is as uncontroversial as it is ubiquitous." The government's theory doesn't have to be "airtight." The 10th finds on its own that prescription medicines have a decent chance to get through airport security whether names are displayed on the bottles or not. Mr. Vann also challenged a prosecutor's claim in closing that ordinarily people found with a lot more serious drugs than they thought they had become upset and break down. On appeal the government admitted there was no evidence of that. The prosecutor compared the usual reaction of people to Mr. Vann's, which was only fake surprise, according to Agent Small. The 10th concluded that in context really the prosecutor was only describing Mr. Vann's reaction, not misstating evidence. That part about the other people was all in the imagination of the court reporter.

Fourth, Mr. Vann knowingly waived his right to counsel at sentencing because three months before the court allowed him to go pro se the court warned him about the dangers of going pro se at trial. When he was given those warnings Mr. Vann chose to keep his counsel. A contemporaneous thorough inquiry is sufficient but not necessary for a knowing counsel waiver. At the post-trial hearing the court listened to Mr. Vann's complaints about his trial lawyers and denied his request for new counsel and found that he was aware of the consequences of his pro se decision, the 10th says. Once again, the 10th notes it would have preferred a more comprehensive procedure. But the "ongoing dialogue with Mr. Vann" was good enough.

Community Caretaking Function Justified Pat-Down Search of Apparently Drunk Man

U.S. v. Gilmore, 2015 WL 221619 (1/16/15) (Col.) (Published) (slip opinion here) - The 10th holds an officer had probable cause to believe Mr. Gilmore was a danger to himself, justifying a pat-down search that lead to the discovery of a firearm, One morning, Mr. Gilmore was mumbling to himself, apparently disoriented and staggering around a western stock show in 8 degree weather. The officers said Mr. GIlmore did not appear to recognize their presence at first. When asked what he was doing there, Mr. Gilmore looked at the officers but didn't respond. Mr. Gilmore complied when asked to put down the items in his hand. He mumbled incoherently in response to a question and did not answer whether he had a weapon. The pat-down ensued.

This was okay, says the 10th. Their community caretaking function allows officers to seize an intoxicated person if they have probable cause to believe the person is a danger to himself or others. There was such probable cause here under the totality of the circumstances, the 10th finds. (1) The officers could believe Mr. Gilmore was intoxicated given his apparent disorientation, evidenced by staggering, gazing into space and inability tor respond to simple questions. This was so despite the absence of typical alcohol consumption indicators, such as the smell of alcohol. (2) The officers reasonably believed Mr. Gilmore's perception and reaction time were impaired. (3) There was evidence the neighborhood surrounding the stock show was dangerous [gang activity, car thefts, weapon possessions]. (4) Mr. GIlmore might wander into an area of high speed traffic. (5) If Mr. Gilmore became unconscious in a remote area in the evening he could suffer serious injury or death from the colder weather, even though he was dressed warm enough at the time of the encounter. The 10th stressed its holding was "narrow" and highly fact-dependent.

Conviction Reversed for New Trial Because of Faulty Jury Instructions

U.S. v. Wheeler, 2015 WL 191149 (1/15/15) (Col.) (Published)(slip opinion here) - The 10th follows its recent decision in U.S. v. Heineman, 767 F.3d 9870 (2014), that the threat statute requires a subjective intent to threaten, resulting in a reversal of the conviction. Nonetheless the 10th does find the evidence was sufficient to convict, making a retrial possible. Mr. Wheeler made Facebook posts which called on his religious followers to kill police officers, children, judges, DAs and public defenders (!). The jury instructions only required the jury to find a reasonable person would have perceived the posts as threats.

The failure to require a finding of subjective intent was error. It was not harmless, the 10th ruled, because: the jury could believe, as Mr. Wheeler told the police, that he had no Facebook friends [very sad] and there was no evidence Mr. Wheeler had any religious followers to follow his commands. Mr. Wheeler's vague sense that his statements were illegal and his statement that he was trying to "stick it to the man" did not constitute uncontroverted evidence that he intended his posts to be threatening. On the other hand, there was sufficient evidence that the posts constituted a "true threat" which the First Amendment is okay with prosecuting. The 10th rejects the approach of some circuits to make an independent review of constitutional facts to see if the statements were a "true threat." Rather the 10th applies the usual any-rational-juror standard. A statement is a true threat if a reasonable person under the circumstances would understand the statement as a declaration of an intent to inflict bodily injury. In conflict with the 9th and 4th Circuits, the 10th holds that exhortations to others to cause harm, as in this case, can constitute a true threat, especially when a reasonable person might believe the individuals ordered to take violent action are subject to the declarant's will. The line between threats and incitement to violence, which is protected by the First Amendment unless directed to produce and likely to produce imminent lawless action, is not so clear, especially in the world of cyberspace, the 10th says. The 10th doesn't want people to be able to hide behind the First Amendment by exhorting others. In this case Mr. Wheeler's statements could reasonably be considered true threats. He commanded specific deadly action against a number of people, which must be evaluated in light of recent massacres by active shooters. The question is not whether Mr. Wheeler actually had religious followers who would follow his commands, but whether a reasonable reader of the statements could have thought so. Evidence of this possibility, although not dispositive, is the fact that some people were frightened by the posts. So there will be a retrial with intent-to-threaten instructions.

Colo. Sexual Assault with 10-Year Age Difference Not a Crime of Violence

United States v. Wray, __ F.3d __, 2015 WL 328589 (10th Cir. January 27, 2015) (slip opinion here): The Court held that a Colorado statute for sexual assault with a 10-year age difference (Colo.Rev.Stat. §18-3-402(1)(e)) does not constitutes a crime of violence for purposes of U.S.S.G. §2K2.1(a)(2) and §4B1.2 because it is not a forcible sex offense and it does not fall within the residual clause.

Judge May Make Sentencing Findings Re: Drug Quantity So Long as Statutory Range Not Affected

U.S. v. Cassius, 2015 WL 327824 (1/27/15) (CO) (slip opinion here): The issue before the court was whether Alleyne v. United States, 133 S. Ct. 2151 (2013), allows a district court to enhance an accused’s Sentencing Guidelines range for a 21 U.S.C. § 841 conviction based on a judicial drug quantity finding greater than what the jury found at trial. The jury found that Cassius intended to distribute only 21 grams of crack but the district court decided afterwards that he was responsible for 450 grams. The panel held that, so long as the sentencing court does not use its own drug quantity finding to alter the defendant’s statutory sentencing range, such an enhancement is entirely consistent with Alleyne. (It didn’t help that Cassius had a prior drug trafficking conviction which raised the statutory maximum to 30 years.) Nothing in the record proved that the trial court altered Cassius’s statutory sentencing range in any way, rather the court used its larger drug quantity finding "solely as a sentencing factor to help determine [Cassius's] sentence within the prescribed statutory range." (Apparently, the jury's decision didn't help the court enough.) Two points to consider: first, the panel commented that Cassius did not challenge the method used by the sentencing court to find him responsible for 450 grams. Second, the panel noted its ruling contradicts Justice Scalia’s dissent from the denial of certiorari in United States v. Jones, 135 S.Ct. 8, 8-9 (2014). There, the justice wrote that even if a judge’s factual finding does not alter the proper statutory range, the finding is impermissible if the final sentence would be substantively unreasonable in absence of the finding.