Immigration-related convictions, lengthy upward departure affirmed

US v. Worku, Docket No. 14-1218 (10th Cir. 9/1/15): The Court affirms the defendant's convictions and sentence for immigration-related convictions and aggravated identity theft. This is also a good case to review for the standards of determining whether photo arrays are unduly suggestive and thus violate Due Process rights.

Mr. Worku, an Ethiopian, entered the US years ago after assuming the identity of Mr. Temanu, an Eritrean. Mr. Worku eventually became a US citizen. Immigration authorities learned Mr. Worku was using a false identity and also suspected that he had tortured Ethiopian prisoners in the 1970s. After a trial, he was convicted of three crimes: 1)unlawful procurement of citizenship or naturalization; 2) fraud and misuse of visas, permits and other documents; and 3) aggravated identity theft. Mr. Work contended that his convictions under 18 USC 1425(a) and (b), in count 1, and 18 USC 1546(a), in count 2, violated the Double Jeopardy Clause. He was in plain-errorville. The Court shortcut the pesky double jeopardy analysis by assuming that Mr. Worku satisfied the first three prongs of the plain error test, and jumped straight to the prejudice prong. Mr. Worku could not prove prejudice because in the Court's view, the evidence of guilt would have been overwhelming even if the charges in the two counts had been more clearly identified with different acts. He had lied about his name on two different documents, the naturalization form and on the application for permanent residence. He also argued (again, plain error) that he shouldn't have been convicted of aggravated identity theft because Mr. Temanu's children gave Mr. Worku permission to use their father's identity. Mr. Worku did not allege that Mr. Temanu himself gave permission for Mr. Worku to use his identity. Thus, even if there was error, it was not obvious.

Mr. Worku was sentenced to 22 years, in part because the district court found that he immigrated to the US to conceal his involvement in torture. He contended the sentence was procedurally unreasonable because the record did not support that conclusion. The Court disagreed. There were three facts in the record to support the conclusion: 1. The jury found that Mr. Worku persecuted others because of race, etc. and lied about committing those crimes; 2. Mr. Worku said he had never felt at ease in Kenya because he feared being kidnapped and returned to Ethiopia; and 3. the Berhe children hired a broker who said Mr. Worku was to pay part of the broker's fee. These facts created a plausible inference Mr. Worku wanted to come to the US to avoid punishment for his crimes.

Mr. Worku also argued that his due process rights were violated because the federal agents showed photo arrays to former inmates of an Ethiopian prison camp, and five of them identified Mr. Worku as a torturer. He argued the arrays were unduly suggestive. The Court discussed the alleged problems with the 6- and 12-photo arrays, and concluded none were overly suggestive. Even if the arrays were overly suggestive, they were sufficiently reliable under the totality of the circumstances. Even though the witnesses had last seen Mr. Worku more than 30 years ago, the circumstances under which they saw him (torturing them) were also extraordinary.

The district court's upward variance from the guideline sentence of 3 years to 22 years was not an abuse of discretion. The district court concluded the guidelines range was too low because of the horrific nature of Mr. Worku's violations of human rights in Ethiopia and his lying about his idenitity to avoid punishment.

Court's Power to Alter Judgments Limited

US v. Spaulding, Docket No. 13-1376 (10th Cir. 9/1/15): 18 USC 3231, which grants district courts original jurisdiction over criminal cases, does not, standing alone, confer upon the district court jurisdiction to set aside a previously imposed criminal judgment that includes a term of imprisonment. Rather, the district court has jurisdiction to alter such judgments only to the extent "expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure." 18 USC 3582(c)(1)(B). The cause is remanded for reentry of the original judgment.

Career Offender Guideline Residual Clause is Unconstitutionally Vague

US v. Goodwin, Docket No. 13-1466 (10th Cir. 9/4/15): Mr. Goodwin's prior Colorado conviction for criminal trespass is not a crime of violence under USSG 4B1.2(a)(2). The residual clause of the career-offender guideline is void for vagueness following Johnson. The government abandoned its position that the crime was a crime of violence under that clause and concedes that enhancing Mr. Goodwin's sentence was plain error.

Ruppert v. New Mexico Department of Corrections (DOC) (, 2015 WL 4174966 (7/13/15) (N.M.) (unpub'd) - The 10th rejects Mr. Ruppert's claim that the N.M. Department Of Corredtions and the company operating its facilities "were using crime to produce a commodity to feed the private prison sector." The 10th finds no evidence "the feeding of the prison sector" extended Mr. Ruppert's confinement. The 10th also rejects Mr. Ruppert's contention that prison officials processed a high rate of disciplinary misconduct reports to deprive inmates of rehabilitation and enhance their sentences. The 10th finds the rehabilitation statute, N.M. Stat. Ann. § 33-8-3, does not limit discretion so as to make rehabilitation a protected due process right.

Mathison v. U.S., 2015 WL 4296867 (7/16/15) (Col.) (unpb'd) - Mr. Mathison could not obtain relief for hearing loss he suffered soon after the Florence prison's public address system volume increased. The cause of the hearing loss was not plainly identifiable by a layperson. So he could not prove causation without an expert, which he didn't have. The 10th does not make any suggestions as to how an indigent prisoner like Mr. Mathison could possibly obtain an expert.

U.S. v. Malik, 2015 WL 4258271 (7/15/15) (Col.) (unpub'd) - The district court committed plain error when it imposed a longer two-year, rather than a one-year, supervised release term because it erroneously believed it could not later extend the term if Mr. Malik screwed up. The plain language of 18 U.S.C. § 3583(e)(2) allows an extension. The 10th agrees with the government's concession that the 3rd & 4th prongs of the plain error reversal test apply because there was a strong possibility he would have received a one-year, rather than a two-year, supervised-release term if the district court knew the term could later be extended. This was so because the court gave its incorrect view of the law as the biggest reason for the length of the term.

U.S. v. Mackay, 2015 WL 4269608 (7/15/15) (Ut.) (unpub'd) - With the case in an unfavorable procedural posture, the 10th affirms the vacation of two counts of distributing a controlled substance resulting in death, 21 U.S.C. § 841(b)(1)(E)(i), due to jury instructions that violated Burrage v. U.S., 134 S. Ct. 881 (2014). Initially the 10th affirmed Mr. Mackay's convictions, but remanded due to unrelated sentencing errors. While the case was on remand before the district court, the S. Ct. decided Burrage, which required for a resulting-in-death conviction that the government prove the victim's use of the drug was a but-for cause of death. The d. ct. vacated the convictions because its instructions did not conform to Burrage. The 10th holds an exception to the law-of-the-case doctrine---an intervening and dramatic change in controlling legal authority--- permitted the d. ct. to do that. This was so, even though the mandate only called for resentencing. The mandate rule is just a subspecies of the law-of-the-case doctrine and so the intervening-change-in-the-law exception applied to that rule as well. The jury instructions gave no guidance as to what "resulted from" meant. The jury could easily have thought, as the government had argued in Burrage, that the drug need only contribute to the death. The 10th's ruling on the initial appeal that the evidence was sufficient to prove a but-for cause did not preclude relief here. Evidence sufficiency is a different issue than whether the jury that convicted under erroneous instructions would have convicted a defendant under proper ones. The government then loses the forfeiture battle. The government argued in its reply brief that Mr. Mackay had forfeited his bad-instruction claim by not raising it on direct appeal. But the government forfeited its forfeiture argument by not raising it in its opening brief. Finally, the 10th does find that the d. ct. was wrong to find the evidence insufficient under Burrage. The law of the case required acceptance of the 10th's initial holding that the evidence was sufficient to prove a but-for cause. Remand for a new trial.

U.S. v. Archuleta, 2015 WL 4296639 (7/16/15) (Ut.) (unpub'd) - The 10th affirms the grant of a suppression motion based on a detention without reasonable suspicion. The officer lawfully stopped Mr. Archuleta for the offenses of jaywalking and improper bicycle lighting and asked Mr. Archuleta what was in the black bag he was carrying. Mr. Archuleta responded that he had a firearm. Standing alone, possession of the firearm in the black bag did not violate any law. A database search showed Mr. Archuleta had a misdemeanor drug conviction and other drug charges that didn't result in convictions. The officer should have let Mr. Archuleta go at that point. Instead the officer kept asking questions which lead to Mr. Archuleta's admissions that he used meth on a regular basis. That the encounter occurred at 1:25 a.m. in a "high-crime area" and that Mr. Archuleta had his criminal history did not create reasonable suspicion that he was a drug user illegally possessing the firearm. The 10th was unimpressed with the time of day because Mr Archuleta was going to a 24-hour convenience store. Importantly, the 10th picked apart the "high-crime area" evidence. It required the "high crime" to relate to the crime the officer suspected Mr. Archuleta of committing. A history of beer thefts at the store and the neighboring town's high crime rate didn't cut it with the 10th. No evidence indicated the area was more likely than others to be visited by drug users possessing firearms. Mr. Archuleta's drug history was not particularly probative either. The officer didn't specify the ages of the conviction and charges. So the history didn't provide a meaningful connection to the suspicion that Mr. Archuleta was a "current, active drug user." Under the new Rodriguez case, it didn't matter that the officer only illegally extended the stop for a minute or two. "An illegal seizure is an illegal seizure," the 10th declares.

Sharp v. Rohling, 793 F.3d 1216 (7/15/15) (Kan.) (Published) - A remarkable 10th grant of habeas relief under the AEDPA standards for the admission of an involuntary statement. During a video-recorded custodial interrogation, after admitting she helped burn the murder victim's belongings, Ms. Sharp asked an officer if she was going to jail. The officer said:"no" 10 times and then explained: "You are a witness to this thing as long as you do not do something dumb and jam yourself." He added: "Just don't tell me no, if I ask you something." Later the officer assured her they were going to work together to get her and her children shelter. The children were brought to her. After Ms. Sharp accommodated the officer with incriminating statements and demonstrations at the scene of the crime, the officer put her in jail. She accused the officer of tricking her, as she was led to her cell. The state trial court found Ms. Sharp's statements to be voluntary because she seemed relaxed and unstressed during the interrogation. The state appellate court found no promise of leniency or at least that any promise was conditioned on not incriminating herself. The court also found Ms. Sharp did not confess in exchange for helping her children or, in any event, it was just a promise of a "collateral benefit."

The 10th held the state appellate court had made an unreasonable factual finding. The officer did in fact make a promise of leniency. After Ms. Sharp made an incriminating statement, he told her she would not go to jail, despite her confession This was not a simple exhortation to tell the truth. The officer's subsequent "something dumb" and "don't say no" comments did not alter the clear leniency promise. The promise was not contingent on her not incriminating herself because she already had. Because the state court's decision was based on an unreasonable fact finding, the 10th reviewed the voluntariness question de novo in light of the totality of the circumstances . Despite factors weighing in favor of voluntariness---the interrogation "only" lasted 5 hours and the officer provided Ms. Sharp with Miranda warnings and water---her statements were involuntary. The 10th reached that conclusion because: Ms. Sharp was promised no jail; the "something dumb" comment meant no prosecution if she cooperated; the officer exhorted her not to say no to his questions; the promise of shelter was inconsistent with arrest; retrieving the children added weight to the no-jail promise; and Ms. Sharp's surprised and angry reaction to her arrest indicates her statements were not the product of her free will. The circumstances critically impaired Ms. Sharp's capacity for self-determination.

The admission error was not harmless. The state stressed to the jury that Ms. Sharp said to the officer [post-promise] she objected that the victim should not be killed "here," not that he shouldn't be killed somewhere else. In her post-promise statements, Ms. Sharp described in detail how she took the lead in burning the victim's belongings to destroy evidence of the crime. Plus the state used her written incriminating statement as well. And, absent her involuntary statements, she may not have testified, leading to an admission on cross that "in a way" the burning was her idea. Evidence aside from her involuntary statements was not nearly as incriminating as her statements. So long to Ms. Sharp's convictions for murder and kidnaping.

Shell Game: Conviction for Obstructing Tax Laws Using Fake Trusts Affirmed

U.S. v. Sorensen, 2015 WL 5315645 (9/14/15) (Colo.)(Published). - The Tenth affirms defendant's conviction under 26 U.S.C. § 7212(a) for corruptly endeavoring to obstruct tax laws by the deposit of income and assets into trusts--that were actually shell entities--not properly reported to the IRS and on which taxes were not paid. The court holds: (1) Mr. Sorensen was correctly charged with the offense of conviction even though he could also have been charged under the tax evasion statute -- the government gets to make that call; (2) the district court properly refused to give an instruction requested by Sorensen that required his knowledge of the illegality of his conduct; the district court instructed the jury that it must find he acted "knowingly and dishonestly," and thereby already required such proof; (3) the district court properly gave a deliberate ignorance instruction; there was considerable evidence that Sorensen had attempted to remain deliberately ignorant of the trusts' illegality; (4) while the district court erred by instructing the jury that it could convict Sorensen if it unanimously found any one of the "means" alleged in the indictment, rather than those "means, among others," as the indictment stated, the error actually should have helped Sorensen; (5) the district court did not abuse its discretion by disallowing the defendant's surrebuttal testimony from a witness who could have been called earlier; (6) government misstatements in closing argument did not affect Sorensen's substantial rights in light of the strong evidence against him; and (7) the claim of cumulative error was waived in light of Sorensen's failure to cite pertinent authority supporting it.

Bambi's Revenge? Salting Areas to Lure Wildlife In Violation of State Law Supports Lacey Act Convictions

US v. Rodebaugh, 2015 WL 5011174 No. 13-1081 (10th Cir. 2015): Mr. Rodebaugh ran an outfitting and guide service in Meeker, Colorado, and took clients on elk and deer hunts in the nearby national forest. His clients shot lots of deer and elk, probably because, contrary to state law, Mr. Rodebaugh would salt the ground near the base of his tree stands where the hunters would wait. The Lacey Act says that selling wildlife taken in violation of state law is a federal crime. He was indicted, found guilty of six counts, and sentenced to 41 months in prison and 3 years of supervised release.

1) The Court upholds the district court's denial of the suppression motion. Mr. Rodebaugh confessed. He contended the confession was involuntary because he had only had about 3 hours of sleep in the two days before his confession. The district court, based on testimony that Mr. Rodebaugh normally didn't sleep much, found that this was normal for him. Additionally, there was no evidence that the 69-year-old Rodebaugh was unusually susceptible to coercion. He was not on medications, had graduated from high school, and ran his own business. The details of the interrogation demonstrated Mr. Rodebaugh's will was not overborne. He was interviewed at a picnic table. Most of the time, only two agents were present. He was offered water. He was told he could leave and that he was not under arrest. He was not tricked even though the agents asked for a short meeting and it turned into 3 hours. The Court was concerned by the fact that one agent told Mr. Rodebaugh, before his confession, that "If you work with us, we'll go easy on you, otherwise we are going to take your house and all of your property away from you." Even if this was a threat, the Court says it would affirm under the totality of the circumstances.

2) It was ok for the district court to make Mr. Rodebaugh present first at the suppression hearing.

3) The Colorado law prohibiting baiting was not unconstitutionally vague. The law clearly applied to prohibit what Mr. Rodebaugh did -- put salt next to tree stands to aid in the hunting of deer and elk.

4) The evidence was sufficient to support the convictions.

5) The guidelines were properly calculated. The two-level enhancement (USSG 2Q2.1(b)(2)) for creating a significant risk of disease transmission among wildlife was supported by photos showing elk gathering with their noses down on the ground where the salt was placed. There was evidence this is not their natural feeding behavior. Additionally, the elk were lured to the same places. Both activities increased risk of disease transmission among them. The six-level enhancement for the value being more than $30K was properly based on the testimony of the government witnesses. The Court found that the enhancement for obstruction of justice was supported by various false testimony Mr. Rodebaugh made at trial.

6) The Court divided on the propriety of a supervised release condition prohibiting Mr. Rodebaugh from hunting or fishing or guiding or accompanying anyone hunting or fishing anywhere in the United States. Judge Matheson would vacate this occupational restriction and remand because the district court failed to make specific findings. Judges Bacharach and Moritz, however, held that Mr. Rodebaugh forfeited his argument because he failed to object in the district court and declined to excuse the failure.

Supervised Release Condition Prohibiting Possession of Pornography Was Not Reasonable

United States v. Martinez-Torres, 2015 WL 4590987 (7/31/2015) (NM) (Published): The panel ruled that imposing an adult pornography restriction as a condition of supervised release was not reasonably related to Mr. Martinez’s history or other statutory sentencing factors. As part of his sentence for violating supervised release, the district court ordered that Martinez be forbidden from viewing or possessing any material depicting or describing sexually explicit conduct. Defense counsel objected to this condition. The district court said that the condition was “in the best interests of the public” and necessary because Martinez was a registered sex offender in Texas. The panel decided the court’s reasons were inadequate to warrant the condition. The district court should have made “an individual assessment of whether the condition was appropriate” for Martinez. In other words, the court had to demonstrate it had a “reasoned basis” for applying the condition to the specific accused. Since the district court used Martinez’s history as a reason for imposing the condition, it had to show that sexually stimulating materials had fueled the unfortunate parts of his history. The panel said that nexus can be satisfied by looking at expert studies or considering the court’s own observations and experience. The panel listed a page and a half of authority coming out on both sides of the question of whether viewing adult pornography promotes sexual aggression. Finally, the court distinguished Mike and Hahn, two cases in which other panels found a court imposing this condition had not committed plain error. The panel explained that a district court’s erroneous ruling will survive a plain error analysis when other circuits are divided on the issue. (Which, on this issue, they are.) However, when such an error is reviewed for an abuse of discretion, the court will “examine more deeply whether the apparent differences in other circuits can be reconciled” and then will reach its “own conclusion about the governing law.” In the district court, therefore, it is best to object to such conditions.

Motion to Dismiss Petition for Revocation of Supervised Release Should Have Been Granted

US v. LeCompte, 10th Cir. No. 14-2200 (NM): The Tenth Circuit agreed that Mr. LeCompte could bring an "as applied" challenge to his revocation of supervised release and reversed for further proceedings. Mr. LeCompte is a registered sex offender who was on supervised release for a SORNA violation. One condition prohibits Mr. LeCompte from being in the presence of minors without the presence of another adult approved by the Probation Officer. A probation officer visited Mr.LeCompte's home and found him sitting outside with his girlfriend, other adults (none of the adults was approved by the PO) and the girlfriend's three-year-old granddaughter. Over Mr. LeCompte's strenuous objections, the district court revoked Mr. LeCompte's supervised release. The 10th first rejected the government's argument that Mr. LeCompte could not challenge the condition as applied to his conduct, making it clear that such challenges are appropriate even when the defendant did not appeal the condition when first imposed. The Court then found that the district court's findings in support of revocation were legally insufficient. It emphasized that "surface comparisons" with the underlying sex offense are insufficient; rather, an individualized assessment is necessary. The district court also failed to discuss relevant aspects of the prior offense and Mr. LeCompte's history and characteristics, namely that the prior sex offense was many years ago and he has not been involved in any inappropriate relationships with minors since then. The district court also did not explain how applying the prohibition to the facts before it was not greater than necessary for deterrence, protection of the public, and rehabilitation.