No Judicial Vindictiveness Shown Where, On Remand after One Count Dismissed, Trial Court Imposed Same Sentence

Eldridge v. Berkebile, 2015 WL 3953701 (6/30/15) (Col.) (Published) - In a § 2241 proceeding, the 10th holds Mr. Eldridge did not establish a presumption of vindictiveness where: on appeal the D.C. Court of Appeals affirmed all Mr. Eldridge's convictions, except one burglary conviction (it dismissed that one count because defense counsel had not adequately explained the sentence ramifications of a guilty plea to that count); on remand the trial court imposed the same aggregate sentence for all the counts, explaining that, if the court gave a lower sentence, Mr. Eldridge would escape punishment for a burglary that was instrumental in the forcible rape that followed. The 10th explains that the S. Ct. has narrowed considerably the import of the judicial vindictiveness case of North Carolina v. Pearce, 395 U.S. 711 (1969), Since the trial court did not increase the sentence, Pearce does not apply.

Guard Who Ignored Complaints of Sexual Harassment Properly Denied Summary Judgment

Castillo v. Day, 2015 WL 3824963 (6/22/15) (Okl.) (Published) - The 10th affirms a denial of a prison guard's motion for summary judgment in a § 1983 case. Former inmates alleged that: one told the guard, without giving details, that she had been sexually harassed and abused by an off-site supervisor and a cook at the governor's mansion where the inmates did work; another inmate told the guard "there are things going on at the mansion that. shouldn't be going on"; and the guard indicated to the inmates she knew sexual stuff was going on between the supervisor and inmates. The inmates alleged the guard didn't do anything and the abuse continued. The allegations, if proven, established deliberate indifference to sexual abuse by the guard by failing to take reasonable measures to abate the sexual abuse risk. It didn't matter that the guard did not take part in the sexual activity or that she was not in a supervisorial position over the men accused of improper conduct.

Unpublished decisions

Cunningham v. City of Albuquerque, 2015 WL 3875537 (6/24/15) (N.M.) (unpub'd) - An example of the low threshold to create reasonable suspicion. Even under Mr. Cunningham's version of events in this § 1983 suit, there was reasonable suspicion where: a man approached Mr. Cunningham who was sitting in the passenger seat of a truck parked by a dumpster behind a pizza parlor in a high-crime area; the man asked Mr. Cunningham to hold a pizza while he went back to the pizza parlor to get his forgotten change; when the man returned he noticed a police officer, said he had warrants, grabbed the pizza and left. The 10th says that, from an officer's perspective, this could have been a drug deal in an out-of-the-way spot: an exchange of something through the truck window and one person in the transaction fleeing when he spots an officer.
U.S. v. Rosemond, 2015 WL 3895151 (6/25/15) (Ut.) (unpub'd) - The 10th holds Mr. Rosemond's foray to the S. Ct. did him no good, thanks to plain error review. At trial, Mr. Rosemond argued the court should instruct the jury that, to convict him of aiding and abetting a 924(c) count, he had to take some action to facilitate or encourage the use of the firearm in the drug transaction. Eventually, the S. Ct. rejected that argument. A conviction could result from facilitating either the drug transaction or the use of the firearm. The Court found problems with a part of the instruction Mr. Rosemond did not object to at trial. The instruction did not make clear jurors had to find Mr. Rosemond possessed advance knowledge of his accomplice's gun and chose to participate in the crime anyway. 134 S. Ct. 1240 (2014). Since Mr. Rosemond did not object to the problematic part of the instructions, he was stranded in the plain-error wasteland. The government could not be faulted for failing to raise plain error in the prior 10th appeal because Mr. Rosemond didn't clearly challenge the erroneous part of the instruction until he was before the S. Ct. where the government did call for plain-error review. The 10th finds Mr. Rosemond failed to meet the affected-the-verdict, 3rd-prong of the plain error-reversal test. The jury found him guilty of being a felon in possession of ammunition without any instruction on aiding and abetting. So, under the facts of the case, where the only ammunition was in the gun of the person who fired the gun during the drug deal, the jury necessarily found Mr. Rosemond was the actual shooter. So Mr. Rosemond could not show the improper aiding-and-abetting instruction affected the 924(c) verdict. This was so, even though the jury sent out a note asking how they should fill out a verdict form if they found aiding and abetting. It sounds like the S. Ct. spent a lot of effort on a case with no chance whatsoever of affecting the ultimate outcome of Mr. Rosemond's case.

Torres-Ledesma v. Lynch, 2015 WL 3895321 (6/25/15) (unpub'd) - The 10th holds the BIA erred when it assumed Mr. Torres-Ledesma was convicted of the felony subdivision of the Oklahoma drug statute. That statute provided for a civil fine or a felony conviction. It was therefore divisible under Descamps. The BIA should have followed the modified categorical approach to see which portion of the statute Mr. Torres-Ledesma was punished under.

King v. Hill, 2015 WL 3875551 (6/24/15) (Okl.) (unpub'd) - The 10th affirms a denial of summary judgment in an officer-shooting, § 1983 case. Officer Hill shot Mr. King, who was standing in front of his home, from about 70 yards away. The 10th finds the evidence, viewed in the light most favorable to Mr. King, was enough to support an excessive force finding where: (1) the alleged crime being investigated was not all that severe (Mr. King, who had a history of violent behavior and was bipolar and off his meds, had allegedly broken a water line and was trying to hurt a horse, and acted agitated, uncooperative and threatening after officers arrived; for the latter behavior he plead no contest to threatening a violent act, a misdemeanor, and received a suspended sentence); (2) Mr. King did not pose a serious threat to any officer (witnesses said Mr. King was obviously unarmed with both hands visible, the report to the dispatcher indicated there were no weapons in the home and Mr. King's threat that he would use black powder in the home to blow up everyone did not pose an immediate threat); and (3) some witnesses supported the claim that Mr. King did not actively resist (i.e., he attempted to raise his arms as requested by the officers). The constitution clearly prohibits an officer from seizing an unarmed, nondangerous suspect by shooting him.

Wigglesworth v. Pagel, 2015 WL 3853286 (6/23/15) (Col.) (unpub'd) - A Colorado prison had to follow disciplinary procedures required by Alaska law with respect to an Alaskan prisoner transferee. His request for wiping out his disciplinary record was not moot because he alleged it would cause harm to his future parole opportunities and in future disciplinary proceedings

Arrest of Alien Was Not Supported By Probable Cause; Suppression Order Affirmed

U.S. v. Argueta-Mejia, 2015 WL 3895213 (6/25/15) (Col.) (unpub'd) - In this case, the plain-error tables are turned against the government. Before the district court the government argued a state officer could arrest Mr. Argueta-Mejia for an immigration offense, but did not contest Mr. Argueta-Mejia's contention that the arrest was made without probable cause. The court ruled the arrest was illegal because the officer did not follow statutory procedures governing immigration officials. The 10th holds the federal constitution allows a state officer to arrest for any crime, including federal immigration offenses. But the probable cause question remained. On appeal the government argued there was probable cause. The 10th suggests the government's failure to argue probable cause below waived the issue, but it elects to review for plain error because the defense wins in any event. As for the defense's preservation of the issue, orally raising the lack of probable cause at a status conference is allowed by the Rules of Criminal Procedure, see Fed. R. Crim. P. 47. Things are not good for the government in plain-error-ville. When the officer arrested Mr. Argueta-Mejia, proof of one element---that Mr. Argueta-Mejia did not have permission to reenter after removal---was missing. That Mr. Argueta-Mejia was removed was not evidence he did not receive reentry permission. The 10th is not impressed by the government's claim at oral argument that permission is "not easy to come by." No evidence supported that claim. There was no case law as to whether you could arrest for a reentry offense without evidence of the permission element. The circuits were split as to whether there must be at least some evidence of every element of an offense. Neither the 10th nor the S. Ct. has addressed that issue. Any error was not plain.

As for the remedy, Olivares-Rangel required suppression of the fingerprints and other identity evidence. To avoid the exclusionary rule the government had to prove fingerprints were taken solely as part of a routine booking procedure. The government couldn't meet that burden. The district court's finding that the fingerprinting was in part done to aid in the investigation of Mr. Argueta-Mejia's immigration offense was not clearly erroneous. Mr. Argueta-Mejia was arrested because he was a previously deported felon. ICE conducted the booking process. The fingerprinting was done to ID Mr. Argueta-Mjeia as a previously deported felon. And there was no evidence the government could retrieve Mr. Argueat-Mejia's immigration record without his fingerprints. Olivares-Rangel required suppression regardless of whatever policy reasons the government proffered against suppression.

Sufficient Evidence Supported Witness Tampering Charge

U.S. Sparks, 2015 WL 3916626 (6/26/15) (Kan.) (Published) - The 10th holds the evidence was sufficient to convict Mr. Sparks of witness tampering in violation of 18 U.S.C. § 1512(b)(1) where Mr. Sparks' daughter faced federal charges of distributing oxymorphone resulting in death; 3 weeks before trial Mr. Sparks brought his granddaughter, a potential witness at trial, to jail to visit her mother, Mr. Sparks' daughter; after the visit Mr. Sparks took his granddaughter to dinner; at dinner she said an investigator had talked to her; he told her: "you should only lie about important stuff." The government did not have to show Mr. Sparks did anything else, such as a threat or emotional appeal or repeated urging. A directive to lie is sufficient. That one statement made in the particular context of this case was enough, based on the 10th's interpretation of the word "persuade." A rational juror could conclude Mr. Sparks didn't just tell her to lie; he leveraged his familial relationship with his granddaughter and her relationship with her mom to induce false testimony. The district court did not err in failing to instruct the jury on the § 1512(e) defense that the sole intention was to encourage, induce or cause the other person to testify truthfully. The 10th doesn't feel that the evidence, even in the light most favorable to Mr. Sparks, supported that his sole intention was to encourage truthful testimony. He testified that at the dinner he only said "it's going to be all right" and told her her mom did not intend to harm the deceased. None of the statements could be interpreted as an attempt to encourage truthful testimony. At best, they were just words of "solace."

Mixed Bag For Habeas Petitioner as Divided Panel Affirms in Part, Reverses in Part

U.S. v. Williams, 2015 WL 3857270 (6/23/15) (Okl.) (Published) - The 10th broadly interprets the scope of the successive-petition provision of § 2255(h) and strictly limits when it considers a court to be acting sua sponte, Mr. Williams filed a number of unsuccessful § 2255 motions challenging his drug and firearm convictions. Finally he filed a motion to withdraw his guilty plea based on newly-discovered evidence that indicated the Tulsa police acted dishonestly in his case. Based on the new evidence, the district court vacated Mr. Williams' convictions on the grounds that it was sua sponte exercising its inherent power to correct fraud on the court. The 10th holds Congress overrode that inherent power, and the authority to prevent a miscarriage of justice, by adopting 18 USC § 2255(h). As a consequence, Mr. Williams could not get relief except by first obtaining authorization to file a petition from the 10th and by proving his innocence by clear and convincing evidence, as opposed to by a preponderance. There was no work-around to application of the successive-petition rule. Because the factual bases for his claims existed at the time of his first motion, Mr. Williams could not invoke the notion that this was the first opportunity to file a motion based on his current claims. It didn't matter that proof wasn't available until now. Also, even though the district court claimed it acted sua sponte, which would have avoided AEDPA's restrictions, it didn't really act sua sponte because it granted relief based on the new evidence Mr. Williams presented.

The 10th authorizes a successive petition regarding the firearm count. The district court found a witness credible who testified that: a Mr. Owens removed the gun in question from his waistband and put it in Mr. Williams' car; Mr. Owens was worried about being prosecuted for being a felon in possession of a gun; and the officers told her she could avoid prison if she claimed the gun belonged to Mr. Williams, which she eventually did. Mr. Owens testified the gun was Mr. Williams's. The witness's testimony was "compelling," the 10th said---enough to undermine much of the government's proof, including the credibility of Mr. Owens, despite Mr. Williams' guilty plea to firearm possession. Mr. Williams's explanation that he pleaded guilty due to the officers' coercion was credible, in light of credible evidence of the officers' pattern of fraudulent activity.

The 10th refuses to authorize a successive petition with respect to Mr. Williams' drug convictions. Witnesses testified that a controlled buy officers testified about never happened, officers forced a CI to lie about Mr. Williams manufacturing meth and officers lied about the drug quantity involved. This did not amount to a prima facie showing of innocence, the 10th concludes. The conspiracy count was proven by the finding of meth and meth equipment and chemicals, Mr. Williams' association with someone who made and sold meth, a DEA agent's testimony that 70 witnesses provided information incriminating Mr. Williams and Mr. Williams' plea colloquy. So, while Mr. Williams "raised serious questions" about whether officers manufactured evidence, he didn't show by clear and convincing evidence there were pervasive problems with the agent's investigation. Similarly, with respect to the drug-possession conviction, Mr. Williams didn't dispute he was found with meth on two particular occasions. His claims that the searches that discovered the meth were illegal were irrelevant to the innocence inquiry.

Judge Bacharach dissented, believing the 10th should affirm the overturning of all of Mr. Williams's convictions. He thought the majority misread what sua sponte meant in these circumstances. Unlike the majority, he interpreted the definition of sua sponte in Calderon v. Thomspon, 523 U.S. 538 (1998), to apply only in mandate-recall situations. He thought it didn't matter that the district court based its decision on the new evidence Mr. Williams presented in his motion where the judgment was not final due to fraud on the court. The d. ct's ruling was still sua sponte, as the district court said, meaning the successive-petition restrictions didn't apply. Mr. Williams was entitled to relief because the government waived any challenge to how the district court applied the fraud-on-the-court principle.

Court Rejects Challenges to Convictions, Sentences in Mail Fraud Scheme

U.S. v. Zar, 2015 WL 3853602 (6/23/15) (Col.) (Published) - The 10th holds the district court did not abuse its discretion when it denied the Zars' motion to sever from their co-defendants. The Zars objected to the delay caused by granting the co-defendants' continuance request. 130 days were excludable from the Speedy Trial Act because the delay was reasonable under 18 U.S.C. § 3161(h)(6), given that joint trials are favored, the court needed to hold a Rule 702 hearing regarding the co-defendant's expert witness, the Zars were free on bond, neither had previously asserted a speedy trial demand; the government was going to present one primary body of evidence against all 4 defendants, and motions were still pending. The court adequately explained granting the Zars' continuance motions for a 12-month delay. The court could rely on the facts that were obvious from the "detailed" motions and arguments: at least 29 elaborate mortgage transactions were involved prompting extra need for adequate defense preparation. The Zars were not in custody so as to trigger Miranda requirements where: when agents came to the Zar home, Mr. Zar first closed the door on them, asking them to give him a minute, and then a few minutes later he opened the door and let them in; and Ms. Zar implicitly invited the agents to sit at the kitchen table where the Zars and the agents conversed for 3 hours. It didn't matter whether the Zars subjectively knew they didn't have to talk to the agents, although the 10th was "troubled" by the agents' failure to advise the Zars that the interview was consensual.

The 10th says Cleveland v. U.S., 531 U.S. 12, 25-26 (2000), effectively overruled 10th precedent when the Supreme Court held the mail fraud statute, 18 U.S.C. § 1341, defines one single offense when it proscribes: (1) any scheme or artifice to defraud" and (2) "any scheme or artifice . . . for obtaining money or property by means of false or fraudulent pretenses, representations or promises." (2) merely describes one type of fraudulent scheme. By failing to include "defraud or" the district court did not omit an essential element. Indeed, it made it harder for the government. Including "or joined a scheme" in the instruction did not constructively amend the indictment, which charged that the defendants jointly participated in the mortgage fraud. Under the plain error standard, even assuming an obvious Crawford violation by admitting statements of Mr. Zar without a contemporaneous instruction that the statements could only be used against Mr. Zar, the reasonable-probability, third plain-error prong could not be met, given the independent evidence against Ms. Zar and the giving of a proper limiting instruction at the close of trial. The 10th declines to address an ineffective-assistance-of-counsel claim because the district court did not rule on the issue. The 10th rejects the claim that Alleyne and Apprendi apply to the advisory guidelines per 10th precedent, without noting 3 justices have indicated otherwise. See U.S. v. Jones, 135 S. Ct. 8 (2014) (Scalia, J.. dissenting from cert denial).

The defendants lose their challenges to restitution and loss calculations under 10th & S. Ct. precedent. The relevant-conduct losses were reasonably foreseeable. The district court's "admittedly sparse" findings regarding Mr. Zar's aggravating-role enhancement were sufficient so as not to hinder appellate review. The 10th could divine the basis for the enhancement from the specific parts of the trial record to which the prosecutor directed the court and the court's finding that the record clearly reflected Mr. Zar's manager or supervisor role. The evidence supported that conclusion. Mr. Zar recruited people to join the scheme, advised people on how to help the scheme, directed them to a particular real estate agent and provided loans for down payments. And the district court did all it was required to do when it imposed a within-guideline-range sentence. It noted the range, discussed several § 3553(a) factors, considered the variance arguments and stated reasons for rejecting those arguments.

Crack Conspiracy Conviction Affirmed

U.S. v. Dewberry, 2015 WL 3853576 (6/23/15) (Kan.) (Published) - The 10th finds sufficient evidence for a conviction of conspiracy to distribute 280 or more grams of crack. There was plenty of evidence that Mr. Dewberry was dealing with lots of powder cocaine, and testimony about one alleged incident where he helped cook 3.5 grams of powder cocaine into crack. This was enough to show Mr. Dewberry reasonably foresaw the large amounts of powder cocaine he gave to his co-cook over the course of months would be turned into at least 280 grams of crack. The 10th says there would have been insufficient evidence without some testimony that Mr. Dewberry knew his powder was being turned into crack. The 10th ruled that an insufficiency challenge based on a challenge to the credibility of a witness [in this case the one person who testified Mr. Dewberry helped make crack] will get a defendant nowhere. For essentially the same reasons, the d. ct.'s drug-quantity calculation was not clearly erroneous. Mr. Dewberry pays the price for conciseness. His "mainly" two-sentence argument in the opening brief on his severance motion was not enough to preserve his claim. Moreover, Mr. Dewberry did not show denial of his first motion to sever defendants caused him prejudice [Mr. Dewberry complained about the delay it caused] where the district court granted his second severance motion.

USPS Can Exclude Guns from Post Offices, Parking Lots

Bonidy v. U.S. Postal Service, 2015 WL 3916547 (6/26/15) (Col.) (Published) - A divided 10th okays postal regulations that keep guns out of their buildings and parking lots. Mr. Bonidy has a Colorado concealed-carry permit. He lives in a rural area where the post office doesn't deliver mail. The folks who live there have to pick up their mail at the post office. Mr. Bonidy has to send an unarmed assistant to get his mail. Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013), has already settled that no one has a Second Amendment right to carry a concealed firearm outside the home. As for openly-carried guns in the building, the 10th relies on Heller 's statement that "nothing in our opinion should cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as . . . government buildings." The 10th says that, even if dicta, this is "an important emphasis on the narrowness of the holding itself and directly informs its holding." So the other examples the Heller Court gave---prohibitions on firearm possession by felons and the mentally ill and laws imposing conditions and qualifications on the commercial side of arms would likely be unassailable as well. In sum, the right to carry firearms does not apply to federal buildings.

As for openly-carried firearms in public, such as in the parking lot, the 10th first holds that the parking lot and the building are a single unit, especially given the drop-box in the lot. So the Heller dicta applies equally to the parking lot. In the alternative, the 10th assumes that the right to bear arms applies, "although with less force," outside the home. The 10th applies intermediate scrutiny. It makes sense not to apply strict scrutiny, the 10th says, because carrying weapons in public for self-defense poses inherent risks to others. This distinguishes the Second Amendment right from other fundamental rights that require strict scrutiny, such as the right to marry. A factor that favors upholding the regulation is that the government has more flexibility to regulate when it is acting as a proprietor, especially with respect to a regulation that is directly relevant to its business objectives, which include providing a safe environment. for its patrons and employees. The ban was sufficiently tailored to the USPS's safety interest, the 10th rules. And USPS buildings and their parking lots are operated as a single integrated facility.
Judge Tymkovich dissents from the parking-lot ruling.

Failure to Allow Allocution at Sentencing on Supervised Release Revocation is not Plain Error

U.S. v. Craig, 2015 WL 4509435 (10th Cir. 7/27/15)(Kan.) - At sentencing on a supervised release revocation, it was not plain error to deprive the defendant of his right to allocute. Although defense counsel was asked by the court if counsel had any objections to the proposed sentence or wished to make any statements, the defendant was not personally asked if he would like to make a statement. There was no objection, so the plain error standard applies. It is no excuse that counsel would have been rude to interrupt. "It is a lawyer's job to object--by way of interruption, if the circumstances warrant--when the court is in the midst of committing an error." The court also doesn't buy Mr. Craig's argument that it would have been futile to object. While the complete denial of allocution at an original sentencing requires reversal, violations of the right of allocution under Rule 32.1 do not. The error was not plain under Tenth Circuit and Supreme Court law. The fourth requirement of plain error review is also unmet because any potential error did not seriously affect the fairness, integrity, or public reputation of the proceeding. Defense counsel acknowledged that Mr. Craig understood and did not seek to challenge the district court's proposed sentence. Besides, there was no suggestion that Mr. Craig had some unspoken words ready to go that might have mitigated his sentence.

Utah may not prosecute tribal members for crimes on land Tenth Circuit has held to be tribal; finality rules!

Ute Indian Tribe of the Uintah and Ouray Reservation v. State of Utah, 2015 WL 3705904 (6/16/15) (Ut.) (Published) - The 10th exalts finality and prevents Utah from prosecuting tribal members for conduct occurring on land the 10th Circuit had previously found to be within tribal boundaries. In a series of decisions the 10th had decided that the Uncompahgre reservation, the Uintah Valley Reservation and certain national forest areas were Indian country. Subsequently, the United States Supreme Court held in Hagen v. Utah, 510 U.S. 399 (1994), that the same congressional actions that the 10th had ruled did not diminish tribal territory did diminish at least a part of the Uintah Valley Reservation. The 10th recalled its mandate to modify its prior rulings to take account of that decision. The 10th refused to grant Utah's request to extend Hagen's logic to hold the Uncompahgre lands and national forest were diminished as well. The 10th stood by the finality principle, even if a different result might have been "more accurate" in light of Hagen. Utah refused to accept this holding. It started prosecuting tribal members on land the 10th had held to be Indian country. The tribe sought a federal court injunction to stop this. The 10th granted the injunction. The state's actions endangered tribal sovereignty. The arrests on rights-of-way running through Indian country were arrests in Indian country. That state officers may enter Indian lands to investigate off-reservation crimes does not give the state the authority to prosecute Indians in state court for crimes in Indian country. Public safety would not be endangered by an injunction, the 10th rules, because the state officers could still patrol the rights of way and stop motorists suspected of traffic offenses. They just couldn't prosecute the drivers if they are tribal members. The 10th may stop a state prosecution when effectuating a previous federal judgment. The 10th sums up: "A system of law that places any value on finality---as any system of law worth its salt must---cannot allow intransigent litigants to challenge settled decisions year after year, decade after decade, until they wear everyone else out." The 10th closes with a warning that Utah would be subject to sanctions if it persists in ignoring 10th precedent.

Issues re: statute of limitations, duplicity, jury instructions and verdict form waived because not raised until post-trial

U.S. v. Madsen, 2015 WL 3814551 (6/19/15) (Ut.) (unpub'd) - Another in a long line of 10th preservation/waiver rulings. After the jury returned its verdict, but before the trial court accepted the verdict, the court asked for briefing. For the first time Dr. Madsen raised challenges related to the statute of limitations, the duplicitous indictment, the jury instructions and the verdict form. After 14-months of extensive briefing and multiple post-trial hearings, the court ruled against Dr. Madsen on the merits and accepted the jury's verdict. All that briefing and ruling didn't matter. Because Dr. Madsen did not raise the issues at a time when the court could have avoided the ostensible errors, he did not preserve his challenges. He only raised the issues when the court could only rectify errors it had already made. Of course, this means a motion for new trial would not preserve any issues that could have been raised before or during trial. To top it all off, every issue he raised on appeal didn't even qualify for plain error review. The issues were waived, the 10th rules. First, the statute of limitations is an affirmative defense that is waived if not asserted at trial. Second, a party who fails to raise objections to an indictment before trial waives any such objections. Dr. Madsen did not show good cause for his untimeliness to avoid that waiver. His pro se status got no sympathy from the 10th. Third, if a defendant does not timely challenge an indictment on duplicitous grounds, the defendant waives any challenge to a failure to use a special verdict form to avoid the duplicity problem.

Defendant's post-trial, presentence release on bond reversed

U.S. v. Hosier, 2015 WL 3814544 (6/19/15) (Kan.) (unpub'd) - The 10th overturns a presentence release order. Following the jury's child-porn guilty verdicts, the district court said; "Mr. Hosier, you've been compliant with your release conditions. So I'm going to keep you on bond until your sentence." The government asked to be heard. The court responded: "I know you're going to tell me detention is mandatory, but I'm not going to do that. You can appeal me if you want to." The government followed the court's suggestion. The 10th noted that release was not justified under 18 USC § 3143(a)(2)(A) because there was not a substantial likelihood of the granting of an acquittal or a new trial and the government was not going to recommend a non-prison sentence since there was a mandatory minimum of five years. The 10th held that the exceptional-reasons exception under 18 USC § 3145(c) didn't justify the release either because the court did not make an exceptional-reasons finding and compliance with release conditions terms does not by itself qualify as an exceptional reason.

Court affirms trial court's exclusion of late-disclosed government evidence

U.S. v. Yepa, 2015 WL 3757193 (6/17/15) (N.M.) (unpub'd) - The 10th affirms in a split decision the judge's exclusion of government evidence that was made part of an exhibit list almost 3 months past the deadline for the exchange of exhibit lists and a week before trial. The good news is the 10th was willing to approve a sanction imposed on the government. Of course, the logic of the decision could justify an exclusion of defense evidence as well. The 10th has affirmed such exclusions on several occasions. In this case, the excluded evidence was a recording of a 911 call purportedly from the victim during her sexual assault that resulted in her death. The day after the murder, the Jemez Pueblo Police Department ("JPPD") gave FBI Agent Bourgeois the CAD for the call. But the agent didn't consider it a priority because the CAD didn't give the victim's name. It just said it was from a drunk, belligerent woman calling from outside the pueblo [due to some cell tower anomaly]. The day after the murder Mr Adams told the JPPD he saw Mr. Yepa raping the victim. Mr. Adams said he took the victim's phone and later threw it away. He led a JPPD officer to where the phone was. The JPPD kept the phone in evidence in the file corresponding to Mr. Yepa's case. The agent knew Mr. Adams led the officers to where he threw the phone, but supposedly didn't know whether they found the phone. He never asked the JPPD if they had. Around a week after the murder, the agent asked for evidence dealing with Mr. Yepa's case, but he wasn't given the victim's phone or the officer's report about finding it. Meanwhile, Judge Armijo set May 15, 2013, as the deadline for the exchange of exhibit lists. In June, 2013, the prosecutor, and the agent retrieved from the 911 dispatch office, and listened to, the 911 call. The prosecutor asked the agent to see if the phone number on the 911 CAD was tied to the victim's. It was her number, but the agent didn't do what the prosecutor asked him to do and the prosecutor didn't follow up. On July 31, the agent and prosecutors learned by accident that the victim's cell phone had been found and was in the JPPD files. A week later, and one week before trial was scheduled, the government added the 911 recording to the exhibit list because the agent eventually found from the phone data that the victim had called 911 the night of her death.

The 10th applied the factors addressed in U.S. v. Wicker, 848 F.2d 1059 (10th Cir. 1988), a case in which our long-ago esteemed FPD colleague Peter Schoenburg obtained affirmance of exclusion of government expert evidence due to the tardy disclosure of the expert's drug report. First, the 10th agreed with the district court that, although the government did not act in bad faith, it did act negligently by not pursuing the phone and 911 recording evidence until accidentally coming upon it and then taking a week to reveal the phone's contents to the defense, one week before trial. Exclusion may be appropriate even without bad faith, the 10th says. Second, the 10th found the district court did not clearly err when it found the defense could not adequately prepare for trial as scheduled given the late designation of the recording. Third, even though a continuance would have cured the prejudice to the defense, the required 4-8 week continuance would have disrupted the court's schedule, inconvenienced the jurors who had already been summoned and kept Mr. Yepa in jail for more time before trial, implicating his speedy trial rights. The 10th says integrity and scheduling considerations alone may justify exclusion of otherwise admissible evidence. The 10th finds exclusion would not endanger a just adjudication given other evidence against Mr. Yepa. The 10th rejects the government's analogy to good-faith Fourth Amendment cases. In those cases, the point is to deter future misconduct, whereas in a discovery violation situation, the current misconduct could be dealt with, the 10th reasons.

Good faith exception applies to stop based on flawed database information

U.S. v. Esquivel-Rios, 786 F.3d 1299 (5/27/15) (Kan.) (Published) - A bad good-faith decision for the defense. A Kansas trooper called into dispatch about a Colorado temporary 30-day registration tag. The dispatcher said there was "no return," explaining that "Colorado temp tags usually don't return." In fact, at the time, information on those tags was never available from the Colorado database the dispatcher searched. The database did not notify a searcher that it did not contain such information. Neither the dispatcher nor the trooper were informed in training in that regard. The trooper didn't believe the Colorado temp tag information was unavailable. He thought he had gotten such information before, even though he hadn't. Assuming there was a constitutional violation, the 10th holds good faith prevents exclusion. The 10th analogizes this case to Herring v. U.S., 555 U.S. 135 92009), where good faith saved reliance on a database that mistakenly indicated an outstanding warrant. The 10th finds it was objectively reasonable for the trooper to rely on the "no return" response from the database. The dispatcher's warning was "equivocal and anecdotal." In any event, the 10th decides it cannot exclude evidence just for "marginal" deterrence. The officer must be reckless or grossly negligent before exclusion happens. There's no misconduct to deter if the officer was not "on notice the entire database was unreliable." The 10th conceded it might have come to a different conclusion if the case involved a Colorado officer who was aware of the database's incompleteness. And there was no recurring or systemic negligence by the database caretakers. Missing some information doesn't meet that standard. If the regime "routinely lead to false arrests due to grossly mismanaged databases," then the 10th might consider exclusion.

Unpublished decisions

U.S. v. Lunnin, 2015 WL 3429360 (5/29/15) (Kan.) (unpub'd) - The district court erred when it rejected Mr. Lunnin's request for a minimal-role adjustment on the grounds that he could not receive such a reduction because he was held accountable under the guidelines only for the drug quantity he was personally involved with. That reasoning directly conflicts with § 3B1.2, cmt. n. 3(A). But the error is harmless because Mr. Lunnin could not possibly qualify for a reduction due to his loaning of $22,500 to a co-conspirator for the drug business, expecting a $10,000 profit. This showed he understood the scope of the enterprise. Troublingly, the 10th holds that, by asking for a departure only to Level 32, Mr. Lunnin must have recognized the drug quantity required a 10-year mandatory minimum sentence. So he waived any challenge to the district court's quantity findings that resulted in a 10-year mandatory minimum.

U.S. v. Ortiz, 2015 WL 3407443 (5/28/15) (Kan.) (unpub'd) - The 10th concludes that any two-offense-level guideline error would be harmless because the district court imposed a sentence that was 50 % of the low-end of the possibly wrong guideline range.

Florentino-Francisco v. Lynch, 2015 WL 3389987 (5/27/15) (unpub'd) - Solicitation of prostitution is a crime involving moral turpitude ("CIMT") because prostitution is a CIMT. You can't have the prostitute without the john. The 10th rejects the alien's contention that societal views have changed about the morality of prostitution. It's still "inherently wrong," the 10th responds.

U.S. v. Garcia-Chihuahua, 2015 WL 3372149 (5/26/15) (Kan.) (unpub'd) - The 10th finds a due-process, plea-challenge argument preserved where Mr. Garcia-Chihuahua apparently did not mention the phrase "due process," but did argue he wasn't fully apprised of the consequences of his guilty plea. Unfortunately, Mr. G-C challenged his 2013 guilty plea, which involved an appeal waiver, in an appeal of his supervised-release-revocation relating to a 2008 case. The 10th didn't think he could do that. But it did mention he could have challenged his plea in an appeal of the case with the appeal waiver because an unknowing plea would undermine the appeal waiver as well as the plea.

Vreeland v. Schwartz, 2015 WL 3372139 (5/26/15) (Col.) (unpub'd) - The 10th reverses dismissal of a prisoner complaint. Mr. Vreeland sufficiently alleged retaliation for exercising his protected rights and properly joined a bunch of prison employee defendants. Mr. Vreeland alleged he was denied and fired from inmate job assignments and his right to grieve was denied or impeded due to his filing of a complaint against the prison legal assistant who opened his private mail. It was enough that the prison employees' conduct would "chill a person of ordinary firmness," As long as the ordinary person would be chilled, it didn't matter that Mr. Vreeland was more determined than most and wasn't chilled.

"Gang expert's" testimony was erroneously admitted, but held to be harmless error

United States v. Garcia & Ramirez, 2015 WL 4232199 (7/14/2015) (KS): What are the odds that two young men sentenced to life plus many decades will get relief on appeal? Not good when the opinion starts out like this; “Garcia and Ramirez were convicted of conspiring with their criminal gang of violating the RICO statute.” That does not mean the panel did not find error. It did. It ruled that the government’s expert gang witness did not apply his “expertise” to the facts of the case and instead just repeated what the gang members had told him. His testimony was hearsay and arguably violated the Confrontation Clause. But the panel found the error harmless because numerous witness had also testified to the facts he was repeating. However, this is an opinion one might consider reading when trying to exclude the government’s law enforcement “experts.” It appears that the government uses these experts merely to regurgitate the statements of those they have interrogated. These statements then have an aura of infallibility and culpability when they come out of an “expert’s” mouth. This case and United States v. Mejia, 545 F.3d 179 (2d Cir.2008), which the court relied on here, can help you exclude such testimony. The panel also found the government did not violate Brady because the undisclosed evidence of a co-defendant’s 2 other prior meetings with agents was not material; (2) the government did not violate Napue, 360 U.S. 264, because the witness’s omission of these meetings was not intentional; (3) the challenge to the interstate-commerce jury instruction on the RICO charge failed because it is based on the false premise that there was no evidence that the RICO enterprise engaged in economic activity; (4) the challenge to the VICAR convictions failed because it is based on the same false premise.

ACCA sentence remanded in light of Johnson decision

U.S. v. Snyder, 2016 WL4394324 (7/20/15)(Published) - Mr. Snyder's appeal of his Armed Career Criminal Act sentence is granted under Johnson in light of the unconstitutionality of the Act's residual clause. The Court rejects the government's argument that Snyder lacked standing because his conviction for eluding a police officer would be a violent felony under any interpretation of the residual clause. The court affirms the district court's denial of Snyder's motion to suppress the search of his car that resulted in discovery of the gun because the officer smelled burnt marijuana emanating from the inside of the car and that alone established probable cause that justified the search.

Jury Instructions Were Erroneous, But Defendant Gets No Relief from Mail Fraud, Forced Labor Convictions

U.S. v. Kalu, 2015 WL 3939007 (10th Cir. 6/29/15) (CO) - the district court committed two jury instruction errors in this mail fraud and forced labor case. The defendant was charged with fraudulent misrepresentations re: employment and salaries to foreign national nurses who were forced to work in CO nursing homes. Although the district court plainly erred by failing to instruct the jury that specific intent to defraud is an element of mail fraud under 18 U.S.C. § 1341, there was no reasonable probability that the outcome would have differed with a correct instruction, so Mr. Kalu gets no relief. Same result re: the district court's failure to instruct the jury with the knowledge or reckless disregard standard that is the statutory mens rea for encouraging or inducing an alien under 8 U.S.C. § 1324. The district court plainly erred by instructing the jury on a negligence standard, but there was no reasonable probability that the error affected the trial outcome. The evidence amply showed that Mr. Kalu had actual knowledge that the foreign nationals' entry into or residence in the US would violate the law. And the district court did not impermissibly broaden the indictment on the mail fraud charge, which alleged Mr. Kalu "devised and intended to devise a scheme" to defraud; the jury was instructed that it must find that Mr. Kalu "knowingly participated in a scheme or plan to obtain money or property from another person through false representation." Mr. Kalu did not show any possibility that he was convicted on a charge other than the one alleged in the indictment. Also, the jury was properly instructed re: threat of serious harm under the forced labor statute, which prohibits knowingly providing or obtaining labor or services by a variety of means, including "serious harm or threats of serious harm." The instruction included harm that "causes," but does not "compel" a person to provide labor. The trial evidence demonstrated that Mr. Kalu repeatedly threatened the foreign nationals with legal action, visa revocations, deportation, financial ruin, and physical harm. Finally, the district court did not abuse its discretion by calculating a restitution award based on the salaries Mr. Kalu promised the nurses in the three year job offer documented in the visa petitions.

Illinois Attempted Murder Conviction Held to Be Crime of Violence in Reentry Case

U.S. v. Castro-Gomez, 2015 WL 4072122 (10th Cir. 7/6/15) (NM) - affirmance of district court ruling that Mr. Castro-Gomez's prior Illinois conviction for attempted murder was a crime of violence triggering the 16-level enhancement under USSG § 2L1.2(b)(1)(A)(ii). It did not matter that the Illinois statutory definition of murder was broader than its uniform generic counterpart; it defined murder as killing an individual with the intent to kill or do great bodily harm or with the knowledge that one's actions will cause death. An Illinois conviction for attempt to commit murder constituted a crime of violence because it required the specific intent to commit murder. Applying the language of the attempt statute thus cured the overbroad intent requirement in the murder statute that permitted conviction upon proof only of intent to do great bodily harm.

Good Faith Exception For Once Fails to Save Search Warrant

U.S. v. Cordova, 2015 WL 4072123 (10th Cir. 7/6/15) (Okla.) - it was unreasonable for officers to rely on the search warrant affidavit in this case because it contained so few facts implicating either Mr. Cordova or his current residence. The Tenth reverses the district court's ruling denying the motion to suppress, which was based on the good faith exception. The affidavit indicated nothing more than that a high-volume drug delivery was to have been made two years prior to execution of the warrant to a vehicle parked in front of the home where Cordova lived at that time and that an individual who was a party to that drug deal was at Cordova's current residence on one occasion four months prior to execution of the warrant. It should have been clear to officers that this info did not establish probable cause---it was "so removed from implicating Cordova or his current residence that it amounts to nothing more than a hunch."

Officer Failed to Show Sufficient Grounds to Justify Warrantless Entry; Summary Judgment Reversed

McInerney v. King, 2015 WL3953686 (6/30/2015) (CO): A 1983 civil action in which the panel reversed the district court’s summary judgment for the officer. This case is interesting because the panel ruled that the officer had not shown there were objectively reasonable grounds of an emergency to justify his entry into a woman’s home. When the officer went to serve a summons on McInerney, numerous windows were open. The front screen door was open and the door behind it was open six inches. The garage door also was open and belongings were strewn about inside. The officer did not see any broken glass. He didn’t go in the house but called a sheriff’s deputy to look at the house with him. Twenty six minutes after the officer had gotten there, he and the deputy went into the home. Neither official had tried calling the house or McInerney’s cell phone. The officer argued that a reasonable officer could have believed there was a need to assure the safety of an individual in the residence including McInerney’s 11 year old daughter. The panel wasn’t persuaded because the officer “fail[ed] to explain how a reasonable person would reach that conclusion.” It said the following did not demonstrate an immediate need to protect the officers’ lives or others from serious injury or threatened injury: McInerney’s ex told the officer that she had a long history of drug and alcohol abuse; three years earlier she had overdosed and was hospitalized; she could be erratic, aggressive and violent; she had had a restraining order against her because she was violent towards her children; she had several guns in the house and their 11 year old daughter lived with her part time. The court dismissed these allegations because the officer was not responding to an emergency call; he did not hear or witness any disturbance in the house; there had been no report of gun fire or any threat involving a gun; the officer had no information that McInerney was incapacitated when he visited the home; and there was no evidence of forced entry or theft. The court also noted that the officer first mentioned these allegations in his motion for summary judgment even though he could have revealed them in earlier pleadings.

Claim that Prohibition on Double Jeopardy Was Violated Rejected

Owens v. Trammell, 2015 WL 4081123 (7/7/2015) (OK): A tip of the hat to our Colorado FPD colleague, Howard Pincus. He did a yeoman’s work in forging a very sophisticated double jeopardy - collateral estoppel argument from difficult facts in a state habeas case. Unfortunately he lost. Owens presented three arguments. First, he said that the Oklahoma courts did not use the correct analysis to decide whether the verdicts from Owen’s first trial were inconsistent and they were wrong to treat the verdicts as inconsistent. After reviewing precedent for ten pages, the panel decided Owens waived this argument. It also ruled that no clearly established Supreme Court law established how to resolve the unusual circumstances here. Next, Owens argued the Oklahoma courts unreasonably extended the Supreme Court’s collateral estoppel analysis to his case or alternatively unreasonably applied that analysis in violation of Ashe v. Swenson, 397 U.S. 436 (1970). Owens lost this argument because the Powell truly inconsistent verdict test precluded an inquiry into why and on what basis the jury acquitted Owens. [US v. Powell, 469 U.S. 57 (1984)]. Given the lower courts’ finding that the verdicts in Owens’s first trial were inconsistent, it was not objectively unreasonable for them to find the inconsistency precluded Owens from establishing - through collateral estoppel - the preclusive effect of the acquittal. Lastly, Owen’s second trial did not violate the Double Jeopardy Clause because given the inconsistencies of the verdicts in the first trial, continuing jeopardy permitted Owens to be retried on the felony murder charge.

Court rejects arguments regarding jury instructions and tainted jury, but reverses obstruction enhancement

U.S. v. Kupfer, 2015 WL 4081108 (7/7/2015) (NM): Kupfer was convicted of failing to report $790k in gross income. At trial she admitted that she had not reported this income but denied that her under-reporting was willful. On appeal she raised three issues. First, she said that the district court should have instructed the jury that her behavior was not “willful” if it was merely negligent, inadvertent, accidental, mistaken, or reckless. The panel ruled the court’s instruction accurately defined “willful” and it did not have to include the terms proposed by Kupfer. Second, Kupfer argued that the district court should have held a hearing when after trial, in an affidavit, a juror told the court another juror had said Kupfer had been on the news and that hers was a big, scandalous case with other indictments. The panel rejected Kupfer’s argument. It said she had not requested a hearing in the district court. Also, the court could reasonably have concluded that a hearing would not have provided additional relevant information. Besides Fed.R.Evid. 606(b) prohibits juror testimony on the effect of extraneous information on the jury’s deliberations. And even if the juror’s statements impacted deliberations, there was no prejudice because the evidence against Kupfer was overwhelming. Finally, the panel agreed with the parties that the court should not have applied an obstruction of justice enhancement. The panel noted that Kupfer had simply failed to speak up and disclose the unreported income while authorities investigated. Her omission did not come within USSG § 3C1.1.