100-year Sentence for Non-production Child Porn Offenses Affirmed

U.S. v. Franklin, -- F.3d --, 2015 WL 2167567 (5/11/15)(published) - Consecutive sentences totaling 100 years for five child porn offenses, including advertising, receipt, distribution, and possession -- all non-production offenses -- affirmed by the 10th Circuit. Mr. Franklin had no criminal history. The Tenth holds there was sufficient evidence to support his conviction of advertisement or notice of child porn, based on provision of images to "friends" through a website called "GigaTribe." "Advertisement" and "notice" are everyday words to be interpreted by their dictionary definitions and a rational fact-finder could conclude Mr. Franklin's child porn postings constituted advertisements or notices under 18 U.S.C. § 2251(d)(1)(A). The 100-year sentence was substantively reasonable. Mr. Franklin pointed to disparities between his sentence and those in sixteen similar cases. However, no such evidence was provided to the district court and the cases cited by Mr. Franklin on appeal lacked info about the defendants' offense levels, criminal histories, and the specific offense circumstances. Consequently, the Tenth could not determine how similar the cited cases were to his case or whether the sentencing disparities were warranted. The court rejects, under a plain error standard, the argument that the facts underlying the sentencing enhancements should have been submitted to the jury and not found by the district court. Mr. Franklin's offense level was enhanced by fifteen levels based on court-found facts concerning distribution of child porn for something of value, pattern or activity of sexual abuse or exploitation of a minor, and depiction of at least 600 child porn images.

Frequent Filer Warned

Kenney v. State of Oklahoma, Docket No. 15-6021 (10th Cir. May 5, 2015) (unpublished): On his 20+ appeal, the Tenth warns Mr. Kenney that if he files any more frivolous, malicious, or abusive appeals, he may be sanctioned and possibly restricted from further filings in the Court. Mr. Kenney has previously been restricted from filing in the Northern District of Oklahoma because he filed "a drove of frivolous lawsuits," and he was trying to circumvent the restrictions by filing in the Western District. I guess he'll have to move to another circuit now, not just across the state.

What Not To Do In a Brief

Nixon v. City and County of Denver, 2015 WL 1935251 (4/30/15) (Col.) (Published) - The 10th apparently wants to make a point to brief writers by publishing this otherwise nondescript case. The 10th excoriates Mr. Nixon's counsel, whose name is not listed, unlike what is usually done in published cases, for not explaining why the district court's decision was wrong. The 10th goes through in detail Mr. Nixon's opening brief and observes how Mr. Nixon addressed a number of issues that were either irrelevant or not contested, while not discussing why he lost the case below. The 10th also expresses unhappiness with the general nature of what might be construed as Mr. Nixon's challenge to one aspect of the district court's opinion. That challenge is accordingly waived. The 10th, ever so briefly, addresses an issue it divines Mr. Nixon may have made in one sentence under an inapposite headnote.

Tenth Agrees that District Court Committed Plain, Procedural Error at Sentencing

U.S. v. Sicairos, 2015 WL 1948434 (5/1/15) (Col.) (unpub'd) - A defense victory acquiesced in by the government. The district court varied down two offense levels from a guideline range of 151 to 188 months, did not recalculate the new range and then, without explanation, sentenced Mr. Sicairos to 188 months, the bottom of the original guideline range. This constituted procedural error warranting reversal under plain error review, the 10th decides. The 10th does not explain why this is so, but Mr. Sicairos is not complaining. On the other hand, in a footnote, the 10th unhelpfully notes that at the sentencing hearing held before November 1, 2015, the parties thought the impending reduction of offense levels for meth would result in a two-level decrease for Mr. Sicairos. But the 10th points out the 11.59 kilograms of ice would still lead to the same offense level as before the amendments took effect.

Supervised Release Condition of Six Months in Halfway House Affirmed

U.S. v. Woolsey, 2015 WL 1518073 (4/6/15) (Wyo.) (unpub'd) - The 10th says:"'in affirming, we pause to applaud the district judge's refusal to tolerate persistent manipulation, deceit, and criminal behavior." The 10th affirms a supervised release condition of six months in a halfway house. The 10th says such a condition does not rise to the level of a deprivation of fundamental liberty interests. So the district court didn't need as terrific a justification as it would in other circumstances, such as when familial associations are affected. The halfway house was a way to limit Mr. Woolsey's access to drugs and prevent him leaving the jurisdiction, as well as to provide him a place to live that he might not have had otherwise. The 10th concluded similar to the manner in which it began: "The sentence imposed amounted to nothing more than a condign ["much-deserved," I had to look it up] consequence for an established pattern of intransigent, oppositional behavior."

Obstruction Enhancement Upheld Based on Refusal to Give Voice Exemplar

U.S. v. Mays, 2015 WL 1544725 (4/8/15) (Kan.) (unpub'd) - The 10th upholds an obstruction-of-justice enhancement due to Mr. Mays' refusal to provide a voice exemplar. It didn't matter that he did not successfully obstruct his prosecution. He tried to.

Defendant's Waiver of Counsel Post-Plea Was Knowing, Voluntary

U.S. v. Vigil, 2015 WL 1515477 (4/6/15) (Wyo.) (unpub'd) - The 10th finds Mr. Vigil knowingly and voluntarily waived his right to counsel where the district court gave him a choice: either continue with current counsel or file the guilty-plea-withdrawal motion counsel refuses to file and continue pro se. The 10th holds that a less extensive on-the-record advisement may suffice for waivers occurring after trial than for those waivers happening before trial. The 10th treats the plea withdrawal stage as a post-trial stage. At that stage, the court didn't have to advise about the grounds needed to obtain a guilty-plea withdrawal or possible defenses or mitigating circumstances. Just the "basic facts" regarding the usefulness of counsel and the hazards of self-representation are all the defendant needs to know. Since granting the withdrawal motion was highly unlikely, the court didn't have to advise Mr. Vigil about matters relevant to trial. With these principles in mind, the court adequately advised Mr. Vigil and, besides, he had standby counsel to answer any questions he might have. Mr. Vigil did not have to be put under oath for the counsel waiver to be valid because the oath isn't even required for plea proceedings.

Giglio Doesn't Apply to Evidence Impeaching Non-critical Witness

U.S. v. Thompson, 2015 WL 1544788 (4/8/15) (Okl.) (unpub'd) - Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972),does not apply to information that only impeaches a non-critical witness, says the 10th. In this case, suppression of evidence that a government witness lied to his supervisor was not a violation of Giglio. Other witnesses testified to what the witness testified to. One witness testified to similar facts regarding the arrest and another testified about similar facts regarding the warrant preparation process and the search of the vehicle.

Capital Petitioner Denied Relief

Williams v. Trammell, 2015 WL 1600424 (4/10/15) (Okl.) (Published) - Oklahoma death sentence affirmed. The 10th holds it was reasonable to conclude there was sufficient evidence that under Oklahoma law Mr. Williams committed malice aforethought murder under the aiding and abetting theory, i.e., that he had the intent to kill and he knew his colleague in the armed robbery also had the intent to kill. Oddly, the Oklahoma Criminal Court of Appeals ("OCCA") overruled prior precedent requiring those elements. But it decided in the alternative that there was sufficient evidence of the previously required elements. So there was no due process, retroactivity problem with affirming a conviction based on previously undisclosed elements. The 10th found troubling the OCCA's new aiding and abetting definition that seemed to eliminate the need for mens rea. When addressing the old elements, Oklahoma decided it didn't matter whether Mr. Williams was the one who shot the person that died or that he intended for that particular person to be killed. It only mattered that Mr. Williams intended to kill someone during the robbery and he knew his cohort intended to kill someone. The 10th was cool with this. There was fair warning that the OCCA might make such a decision. It was not unexpected because up until Mr. Williams' appeal it was not clear one way or the other. There was sufficient evidence that Mr. Williams and his cohort jointly planned to rob the bank and to kill whoever stood in their way. That was enough for a conviction. It was unlikely Mr. Williams was ignorant of his cohort's intent to kill, given Mr. Williams' obvious intent to do so. The result of the OCCA's decision was reasonable, the 10th holds, even though its reasoning "was not altogether clear, accurate or comprehensive." It was good enough for the Antiterrorism and Effective Death Penalty Act (AEDPA).

With respect to the ineffective-assistance-of-counsel claims, the OCCA's decision was not a "model of clarity." But that's okay under AEDPA. Deference was owed to the OCCA's broad statement that Mr. Williams' claims "did not rise to the level of ineffective assistance of counsel under the Strickland standard." The 10th couldn't tell under which prong the OCCA decided the question. But deference was still owed. Mr. Williams' lawyer had said in an e-mail he "pops valium like candy just to face the day." But this did not mean Mr. Williams was completely deprived of counsel. The 10th had to look at each alleged act of deficiency and decide if it met the two prongs of Strickland. There was no need for an evidentiary hearing to determine why Mr. Williams' lawyer did what he did at trial. Under the performance prong, objective reasonableness is the standard. The lawyer's subjective reasoning doesn't matter. The OCCA could reasonably conclude counsel was not deficient for failing to object to evidence of Mr. Williams' possession of a stolen watch. That evidence was insignificant compared to the evidence of other prior crimes Mr. Williams had committed. Plus counsel used Mr. Williams' general thievery to explain why he had a wad of cash the day of the robbery. Counsel could have also thought if he objected to the watch testimony it might bring attention to it and the jury might think Mr. Williams had something to hide. Of course, this "logic" would preclude counsel from objecting to anything. It was reasonable for counsel not to object to unflattering photos of an apartment, post-autopsy photos of the victim and detailed testimony by the physician of the treatment of the deceased. They were probative of identifying Mr. Williams as the robber, of his intent to kill and the risk of death to others, respectively. Counsel's failure to object to speculative lay testimony about the cause of injuries to Mr. Williams and testimony about a witness's recanted report of Mr. Williams' admissions were not sufficiently prejudicial and were maybe even helpful to the defense. It was reasonable for counsel not to be ready to cross-examine about a prior inconsistent statement because there was only a remote possibility the witness would change his version of events. So defense counsel should feel no need to carry to the courtroom all those pesky and burdensome prior statements. The 10th refused to address counsel's failure to object to prosecutorial misconduct because Mr. Williams was not specific enough about what conduct by the prosecutor he found to be problematic.

On the penalty phase front, the 10th found Mr. Williams was raising a different complaint than what he raised in state court. He now contended trial counsel should have prepared the testimony of a particular defense expert witness better. In state court he alleged counsel should have called other witnesses. The 10th holds that this amounts to an incurable procedural default. Mr. Williams could not now go back to state court and raise the issue because of Oklahoma's successive petition bar. While Oklahoma does make exceptions to that bar for certain issues, the 10th decided the chance of the state courts making an exception for Mr. Williams' particular issue, which the 10th thought was not very compelling, was so slim it wasn't worth giving Mr. Williams an opportunity to try and raise it now.. It was not necessary for the 10th to be 100% accurate about its prediction about what the the courts would do. Trial counsel's failure to call other witnesses was not prejudicial enough because, with one exception, they would not have testified to anything different than did the two witnesses trial counsel had called: an expert and Mr. Williams' mother. The 10th says the only new testimony would have been from Mr. Williams' uncles who would have testified to how horrible it is to be in prison and how prison can reform someone. The 10th thought such testimony didn't present anything particularly novel and was more likely to be harmful because it would remind jurors that Mr. Williams' closest family members are convicted felons. All of these decisions regarding Mr. Williams' counsel claims were made without any court, state or federal, holding an evidentiary hearing.

Judge Gorsuch concurred. He thought the OCCA's discussion of the elements of aiding and abetting murder suggested strict liability might trigger the death penalty in the future. The judge felt this suggested just selling a gun to someone who later used the gun in a murder might warrant the death penalty under the OCCA's formulation. If this is what the OCCA really meant, the judge says, then it would be contravening Supreme Court law. The judge then extolls the virtues of requiring mens rea. He concurs with the majority because it seems as though the OCCA did issue an alternative holding under a conception of aiding and abetting liability that included a sufficient men rea element.

Emergency Road Block To Locate Bank Robber Did Not Violate 4th Amendment

U.S. v. Paetsch, 2015 WL 1543090 (4/8/15) (Col.) (Published) - The 10th affirms a denial of a motion to suppress in an emergency roadblock situation. A well-disguised man brandishing a gun robbed a bank in Aurora, Colorado. Amidst the cash he took was a tracker that transmitted a silent signal to the police. The tracker could be located within a 60-foot diameter. 14 minutes after the robbery, the tracker indicated the car carrying the tracker was stopped at a red light. Officers prevented the 20 vehicles containing 29 people that were stopped at the light from going anywhere. The tracker could not tell the officers which of the 20 cars had the tracker. The lead officer tried to get a homing beacon to the intersection that could pinpoint the tracker to within a 10-foot diameter. Various mishaps [officer forgot his keys to the office containing the beacon, his siren broke] caused the beacon to arrive 54 minutes after the stop. In the meantime, 29 minutes after the stop, officers pulled Mr. Patesch out of his car and onto the ground with weapons drawn, handcuffed him and sat him on the curb because he was acting "suspiciously." He shifted in his seat, repeatedly looked around and didn't keep his hands outside the car as ordered. Once the beacon arrived, it turned out the officer who brought it couldn't figure out how to use it, although it did evidence a weak signal coming from Mr. Paetsch's car. Using weapons and ballistic shields, the officers ordered all the remaining occupants to leave their cars. The officers handcuffed all those who did not have kids with them. One hour and 24 minutes after the stop, officers did a secondary search and found in Mr. Paetsch's car a bank money wrapper. Soon after, a person who knew how to use the beacon got a strong signal from Mr. Paetsch's car. They found a bunch of incriminating stuff in that car. Nonetheless, officers kept the other motorists at the intersection for another half hour until 2 hours and 18 minutes after the stop.

First, the 10th found the initial barricade to be reasonable. There was no need for individualized suspicion in these circumstances. (1) The public concern was grave. An armed robber was fleeing, representing a substantial public threat. (2) The seizure advanced the public interest well enough. There was a 5 % chance one of the cars contained the robber. This compared favorably to approved roadblocks that only captured 1.6 % or less of drivers who needed to be arrested. Plus, the officers knew for sure the barricade would be effective because the robber was one of the people stopped there. A roadblock does not have to be minimally intrusive, says the 10th, nor do officers have to use the least intrusive method. The greater the danger, the more latitude officers have. (3) The severity of the interference with individual liberty wasn't so bad: 29 people detained for 29 minutes before individualized suspicion was developed. Plus, the people were in cars, which are entitled to less protection than homes. And the officers acted with diligence, albeit incompetently. The 10th refused to consider the intrusion on the innocent motorists after Mr. Paetsch was singled out. There was enough individualized justification to remove Mr. Paetsch from his car 29 minutes after the stop. The 10th refused to include in its analysis the unexpected problems that arose getting the beacon to the scene together with a competent person. There was no evidence the lead officer should have known the delays would occur when he ordered the barricade. He expected the beacon to arrive within 30 minutes, during which time individualized suspicion of Mr. Paetsch arose.

Second, as for the detention of Mr. Paetsch after he was removed from his car, his detention was not unreasonably long. They could detain him for the actual time it took to get the beacon to locate the tracker, an hour and a half after the initial stop.

Chief Judge Briscoe concurred in the result. She did not think the officers had reasonable suspicion Mr. Paetsch was the robber when they removed him from the car. She pointed to the fact that the officers told Mr. Paetsch he was not a suspect as they handcuffed him and sat him on the curb. But, Judge Brisoce says, even if the length of his detention violated Mr. Paetsch's 4th Amendment rights, the exclusionary rule should not apply. More expansion of the good faith exception!!! The officers acted in good faith. The delay was the result of negligence, not deliberate, reckless or grossly negligent conduct, she opines.

Tenth Reverses District Court's Order Granting Suppression

U.S. v. Herrera, 2015 WL 1516267 (4/6/15) (Col.) (Published) - The 10th reverses a suppression grant based on Franks. On the bright side, the 10th holds the district court did not abuse its discretion when it held an evidentiary hearing, even though Mr. Herrera had not made a sufficient showing to require such a hearing. The 10th says: "lots of things in the law, as in life, aren't mandatory but still permissible." District courts enjoy a "fair amount of discretion in choosing the procedures in resolving pretrial motions," the 10th asserts, "in a democratic legal order built on the promise of due process and the vindication of individual rights." From this lofty perch, the opinion goes downhill for Mr. Herrera.

The district court made two errors. First, it clearly erred when it found the search warrant affidavit recklessly created the false impression that the confidential informant(CI) knew that Mr. Herrera used his Ford Escape for drug smuggling as far back as 2009. The 10th did not find anything in the affidavit that indicated that knowledge. Rather, the affidavit showed the CI knew later, when the warrant was applied for, that Mr. Herrera owned an Escape and used it for his drug resupply runs. Second, in deciding whether the affidavit established probable cause without the untrue statement, the district court mistakenly struck virtually everything the CI said. The 10th saw no good reason for the court to disbelieve whatever the CI claimed, especially since much of what the CI said was corroborated. No suppression because there was plenty of probable cause based on the CI's statements and the corroboration thereof.

Categorical Approach Applies to Determining SORNA Tier Except for Victim Age; Remand Necessary to Address Restrictive SR Conditions

U.S. v. White, 2015 WL 1516385 (4/6/15) (Okl.) (Published) - The 10th holds determining what tier level a SORNA defendant is in depends on the categorical approach except when it comes to the age of the victim. In defining Tier III and Tier II offenses in 42 U.S.C. § 16911(3) & (4), Congress requires a comparison to offenses as described in particular statutes. This indicates Congress wanted courts to review the elements of the offenses, not what the defendant's specific acts were. On the other hand, the reference in the definitions to the age of the victim, and the purpose evidenced in the legislative history to punish child sex offenders more severely, indicates the court must consider the specific circumstances to determine the victim's age. In this case, Mr. White was previously convicted in North Carolina of taking indecent liberties with a child under sixteen. Under the relevant statute, neither a sexual act nor an offensive touching was required, e.g. a graphic letter would be sufficient. All the relevant federal statutes referred to in the tier II and III definitions require a sexual act or offensive touching. Mr. White is therefore a tier I offender. The district court erred when it considered his actual conduct in assigning him to tier III. That error resulted in a higher guideline range than was appropriate.

The 10th also required a remand to address the special supervised-release conditions that prohibited Mr. White from contact with his grandchildren and nieces, absent probation approval and adult supervision. The 10th observes that a due process liberty interest in familial associations includes interests other than parental ones. How strong that interest is depends on the relationship between the offender and the children. If the relationship is custodial, then the interest would be similar to that of a parent. The less the relationship resembles a parental one, the less is the liberty interest. On remand, the district court will have to determine what the relationships are and accord a level of constitutional protection proportional to the significance of the liberty interest. The 10th reminds the court it should consider the length of time that has passed since Mr. White's prior conviction and any conduct, or lack thereof, that is predictive of his future conduct. The 10th holds that, regardless of the extent of the liberty interest involved, the district court did not improperly delegate its powers to the probation office. The supervised release term was only 5 years and the court ordered that the probation office approve contact unless Mr. White posed a safety risk and noted its expectation that the probation office would approve family members as adult supervisors.

National Federation of Independent Business v. Sibelius, 132 S. Ct. 2566 (2012) (NFIB"), otherwise known as the Obamacare case, does not change the 10th's opinion that Congress properly enacted SORNA pursuant to the Commerce Clause. The five justices in NFIB who found the Commerce Clause did not countenance the Affordable Care Act ("ACA") addressed the third area where the Commerce Clause operates: where activities substantially affect interstate commerce. But SORNA is copasetic with the Commerce Clause because it is consistent with the first and second areas the Commerce Clause operates in: regulating (1) the channels of interstate commerce; and (2) persons or things in interstate commerce. In SORNA the failure to register is coupled with interstate travel, at least in this case, which involved Mr. White traveling from one state to another without updating his registration. SORNA keeps interstate commerce free of yucky "immoral and injurious uses." The 10th doesn't buy Mr. White's contention that SORNA regulates inactivity, just as the ACA regulates the failure to get health insurance. The 10th feels that it must consider SORNA's "interstate travel" enforcement provision as well as its civil intrastate aspects.

The 10th sticks with its holding in U.S. v. Lawrance, 548 F.3d 1329 (10th Cir. 2008), that SORNA does not have an ex post facto problem, even though a number of state courts have held their sex-offender registration statutes violate the Ex Post Facto Clause. And the 10th believes SORNA is consistent with the 10th Amendment as well. SORNA doesn't conscript state officials to do anything. It merely incentivizes by conditioning federal funding on implementation of a federal mandate. It doesn't matter that Oklahoma has not implemented SORNA.

Tenth Denies Habeas Relief to Oklahoma Capital Defendant

Fairchild v. Trammell, 2015 WL 1843529 (4/23/15) (Okl.) (Published) - The 10th affirms an Oklahoma state capital conviction. The 10th holds Evans v. Ray, 390 F.3d 1247 (10th CIr. 2004), requires it to find no due process violation as a result of the Oklahoma Criminal Court of Appeals' shifting about what mens rea is required for child-abuse murder. No clearly established Supreme Court law indicates treating other child-abuse murder defendants differently with respect to mens rea would violate the Equal Protection Clause. Under Workman v. Mullin, 342 F.3d 1100 (10th Cir. 2003), no additional culpability finding by the jury is necessary to qualify a person who is convicted of felony murder for the death penalty where, as here, the defendant actually kills the victim. State law that second-degree murder is not a lesser-offense of child-abuse murder precludes a defendant from having the right to a lesser-included-offense instruction under Beck v. Alabama, 447 U.S. 625 (1986). Under 10th Circuit precedent, Littlejpohn v. Trammell, 704 F.3d 817 (10th Cir. 2013), it was okay for the judge not to answer the jury's question about whether life without parole really meant Mr. Fairchild would never be released.

The 10th refused to consider evidence presented for the first time in federal court that established the link of Mr. Fairchild's prior history of drug abuse, boxing and head injuries to organic brain damage. The state had not waived an exhaustion argument, although it had not raised an exhaustion defense, because it had not expressly waived exhaustion. So, Mr. Fairchild had to try to exhaust the new issue in state court. But the state court exercised a procedural bar to refuse to consider the issue in a successive petition. In its decision, the OCCA cited a state case that said the court could grant relief in a successive petition situation if there is a miscarriage of justice or a substantial violation of a constitutional or statutory right. Contrary to what common sense would tell you, this does not mean the OCCA had to actually consider the merits of the constitutional claim Mr. Fairchild presented. The OCCA has said it doesn't consider the constitutional merits in such a situation, and the 10th feels obligated to accept this declaration. Trevino v. Thaler, 133 S. Ct. 1911 (2013) does not apply to Oklahoma. In Trevino , the Court held it was so rare in Texas that a defendant could raise ineffective assistance of counsel on direct appeal that ineffective assistance of post-conviction counsel may provide cause for not properly raising the issue of ineffective assistance of trial counsel in post-conviction proceedings. But, unlike Texas, Oklahoma provides several months of time for the raising of ineffective assistance of trial counsel on direct appeal. That is a sufficient time so that defendants don't have to resort to post-conviction proceedings to raise ineffective assistance. And in this case it took 16 months from sentencing before the opening appellate brief was due. It didn't matter that Mr. Fairchild's appellate counsel said in the opening brief that counsel had not been able to conduct a full investigation of Mr. Fairchild's case. What matters is what Oklahoma law provides and that the public defender in other cases had regularly raised on appeal issues similar to Mr. Fairchild's. As compensation the 10th did indicate appellate counsel's plight was "sympathetic." And current 10th Circuit counsel had waived the ineffective-assistance-regarding- mitigation-evidence claim that didn't include the new organic-brain-damage evidence because counsel had not argued the issue before the 10th. And besides, there was no merit to the issue because the unamended claim contained no evidence of a causal connection of Mr. Fairchild's history of boxing and head injuries to his brain function at the time of the crime. Plus the additional boxing and drug abuse evidence trial counsel didn't present may have been considered aggravating, not mitigating, evidence by the jury.

Meth Conviction Reversed for Insufficient Evidence

U.S. v. Washington, 2015 WL 1811151 (4/22/15) (Okl.) (Published) - The 10th finds the evidence insufficient in a not atypical drug-in-the-car case. In a bag in the trunk of the car Mr. Washington was driving, officers found 14 bricks of marijuana and a receipt issued to Mr. Washington's passenger. Officers also found a "large quantity" of meth in 3 closed containers: a "Cold Eeze" box, a zipper bag and a "Green Tea Extract" bottle. There were two scales that were "not easily visible." One in a box and one designed to look like an ordinary iPhone. On the back seat was a false-bottomed container with no drugs in it. There was aluminum foil, but there were no drugs, in Mr. Washington's duffel bag. The car smelled of marijuana(!), but no one testified whether the smell was of burnt or raw marijuana. The 10th found insufficient evidence Mr. Washington knew there was a distribution level of drugs in the car. The smell of marijuana could have meant someone smoked marijuana, but it did not indicate to Mr. Washington there was enough marijuana to distribute. Similarly, the aluminum foil is something meth consumers, not meth distributors, use. Mr. Washington could not see what was in any of the closed containers. To prove this, the 10th attached photos of the opaque containers. There was no evidence Mr. Washington knew there were two barely visible scales. The 10th also disputed the government's interpretation of some of the other evidence, e.g., the 10th determined there was no evidence Mr. Washington heard his passenger lie about where they were going. In sum, the 10th says, the jury could have attributed guilt to Mr. Washington based on his presence in the car and speculation about his knowledge, but that did not constitute sufficient evidence to find guilt beyond a reasonable doubt.

Drug Convictions Affirmed

US v. Gallegos, No. 13-6236 (WD Okla, 4/30/2015)(Published) - Defendant, a bit player in a much larger conspiracy, got ounces of meth for her common-law husband, who would then sell it. She was convicted of three counts of possession with intent to distribute and one count of conspiracy and the Tenth affirmed. Held: (1) defendant forfeited her challenge to admission of coconspirator statements because she didn’t identify any specific statements that should have been excluded; (2) evidence was sufficient to support the convictions; the buyer-seller rule didn’t apply because she got the meth for hubby to distribute; (3) any variance between the charged conspiracy and what she herself conspired to do failed on plain error review because there was no reasonable probability that the outcome would have been different but for the alleged variance, and overwhelming evidence of her participation in smaller conspiracy did not seriously affect the fairness, integrity, or public reputation of the proceedings; (4) challenge to admission of testimony that a co-conspirator requested an attorney during questioning failed on plain error review because defendant couldn’t show that it prejudiced her substantial rights; (5) even assuming error as to the variance and admission of co-conspirator’s request for an attorney, effect of these errors, individually or cumulatively, did not warrant reversal under plain error review.

Remand Ordered for Restitution Recalculation

U.S. v. Howard, 2015 WL 1903339 (4/28/2015) (CO) (published): The panel affirms the district court’s loss calculations under USSG §2B1.1(B)(1) but remands because the district court’s restitution calculations were incorrect. Howard was convicted of mortgage fraud. He argued that the method used by the district court to calculate loss under §2B1.1 could not be used to calculate restitution. The court calculated loss under §2B1.1 by adding the unpaid principal balances on each loan held by the victim and subtracting the amounts recovered from sales of the properties securing the loans. Howard pointed out that this method would not reflect the actual loss to downstream noteholders, because they could have paid less than the unpaid balance to acquire the notes. The panel agreed. It said that “[a]lthough the total-loss calculation under USSG § 2B1.1 does not depend on which lender in the chain of title of a mortgage note suffered what loss, that information is necessary to avoid windfalls in awarding restitution.”