Monday, April 20, 2015

Unpublished Decisions

U.S. v. Becknell, 2015 WL 874398 (3/3/15) (Kan.) (unpub'd) - The 10th holds it would be reversible error in violation of Federal Rule of Evidence 704(b) for an expert to testify that a defendant in a § 924(c)(1)(A) case possessed a firearm "in furtherance of" a crime. But in this case where, as the 10th described it, the officer expert "did everything but state that inference," there is no error. The prosecutor asked the officer "expert" to discuss some of the factors he considers in determining whether a person possesses a firearm in furtherance of a drug trafficking crime. The officer detailed a description of those various factors and then immediately described the facts of the case tracking those factors. So the officer "came close to dictating the final conclusion to the jury," but still left to the jury the ultimate finding of fact, the 10th says.

The 10th doubts that the informant's information alone, which was related in a search warrant affidavit, would be sufficient to establish probable cause where the affidavit didn't discuss the informant's reliability. But, in this case, the trash searches and traffic seen at the house suggesting drug sales were enough to corroborate the informant's tip.

U.S. v. Engles, 2015 WL 896316 (3/4/15) (Okl.) (unpub'd) - Mr. Engles, a sex offender, accompanied his live-in girlfriend to her daughter's high school to update the daughter's emergency contact form to include Mr. Engles' address and to add Mr. Engles as a person authorized to pick the daughter up from school. Someone at the school recognized Mr. Engles as a sex offender. He ended up being convicted of the state offense of "loitering" at a school, which sex offenders are not allowed to do. A jury convicted him, despite his contention that he was not loitering because he was at the school for a particular purpose. His appeal is pending in state court. Meanwhile the feds kicked into gear. The district court revoked his supervised release due to his conviction and sentenced him to the high-end of the guideline range, 13 months. The 10th held it could not do anything about the unfairness of the Oklahoma conviction. That was a matter that could only be rectified in state court.

U.S. v. Evans, 2015 WL 874516 (3/3/15) (Col.) (unpub'd) - USSG § 4B1.5(b)'s enhancement for pattern of activity involving sexual conduct applied to two separate instances of producing child-porn videos, even though those activities occurred within the time frame of the indictment to which Mr. Evans pleaded guilty. Application note 4(B)(ii) makes it clear that the two separate incidents may constitute a "pattern" even if the only "pattern" is conduct involved in the offense of conviction.

Jones v. Heimgartner, 2015 WL 873057 (3/3/15) (Kan.) (unpub'd) - A procedural victory for a prisoner. Mr. Jones filed a § 2254 petition in 2012. This was almost 10 years after his state conviction became final. He contended his 2012 petition was timely because it related back to a § 2254 petition that he filed in 2003. The federal court had no record of receiving that petition. The district court dismissed the 2012 petition on the grounds that a petitioner must provide some substantiation of having sent the 2003 petition. Mr. Jones' sworn declaration that he sent it was not enough. The 10th reversed, holding that there is no additional proof requirement for petitions that never reach the federal court as opposed to those that are delayed and eventually reach the court. In each circumstance, the district court must make a factual determination whether the petitioner sent the petition by a certain date or didn't. It couldn't add a new corroboration requirement.