Unpublished Decisions
U.S. v. Morgan, 2015 WL 6773933 (11/6/15) (Okl.) (unpub'd) - A very troubling reversal of a downward variance to probation. The 10th also affirms the conviction. First, the conviction. The 10th holds the bribery statute, 18 U.S.C. § 666(a)(1)(B), only requires corrupt intent by the defendant, not the other participant. In this case, the owner of an assisted living place complained to Mr Morgan, who was a powerful state legislator and a lawyer, that the state agency overseeing assisted living places was giving him a hard time. Mr. Morgan responded: "This is the way it works. You pay me a $1,000 a month retainer." The owner did so, paying the bills to Mr. Morgan's law office, although no lawyering was done. About 7 months later, Mr. Morgan submitted legislation that protected assisted living places from some of the things the overseeing agency had been doing. All this was sufficient for a rational jury to convict Mr. Morgan. The 10th also holds that the government did not violate Brady. The 10th acknowledges Brady requires the disclosure of tacit agreements with prosecution witnesses. But it finds there was no tacit agreement with the briber-owner, even though there were lots of crimes the government could have charged against him and his daughter, but didn't, and assets it could have forfeited, but didn't. The only agreement proven was the briber's bank fraud plea agreement. Mr. Morgan could have crossed the witness about the government's failure to fully criminally pursue the witness. That's all he was entitled to.
The district court included in the guideline calculation all the bribes Mr. Morgan was charged with, totaling over $684,000 (and 63 counts), even though the jury acquitted him of those charges or was hung on them, except for the one bribery count. involving $12,000 , So Mr Morgan's guideline range calculation shot up to 188 to 235 months. Luckily, the stat max was 120 months (otherwise known as 10 years). The district court varied downward to 5 years probation for the following reasons, among others: the government failed to prove the other payments were illegal, lowering the theoretical range to 41 to 51 months; Mr. Morgan's conviction was based on "very suspect evidence, based on a convicted felon's testimony, resulting in a bill that no one has ever complained about"; Mr, Morgan was adequately punished by the publicity and the loss of his law license and physical and financial health; there were 482 letters of support; and the sentence should be in the range for the one count divided by 63 for the total number of counts charged.
The 10th is extremely unhappy with the sentence. The first thing it does is grant the government a procedural favor. The government only argued substantive unreasonableness. The 10th thought a lot of the arguments sounded more like procedural unreasonableness claims. So it treats them as such, although it acknowledges ordinarily the government's position on appeal would have waived procedural unreasonableness as an issue. The 10th exercises its discretion to consider waived arguments. The 10th reviews for plain error, waxing poetic about the "important purpose" that plain error review serves. The 10th finds a number of procedural errors. (1) The district court was wrong to disagree with the verdict. (2) The court was wrong to consider the collateral consequences of prosecution and conviction. The bad publicity and loss of license and health were not the sentence. It's the sentence that must reflect the seriousness of the offense. The 10th explains that giving Mr. Morgan a break due to the collateral consequences would give an unearned break to the elite, while the less privileged get more prison time. (3) The court did not consider the unwarranted disparity its sentence created. (4) The 10th expresses concern about the "no harm no foul" remark regarding the legislation Mr. Morgan sponsored. That remark minimizes the seriousness of the offense because the real victim of the crime, the 10th says, is faith in honest government. The 10th goes on to find the errors plain, even though the 10th has yet to address the errors. Other circuits have and explicit language of 28 U.S.C. § 994(d) and USSG 5H policy statements clearly prohibit what the district court did And the errors affected the sentence and adversely affected public reputation, etc. because Mr. Morgan undermined our faith in good government and should have gotten significant prison time. As you can see, there are helpful nuggets in this decision for those of us who end up arguing plain error in the future.
The 10th goes on and find the sentence substantively unreasonable because it's "easy" to reach that conclusion. The 10th feels the district court was wrong to consider the other 62 counts for which Mr. Morgan was not convicted as mitigating. On the contrary, the court should have considered them aggravating because the 10th finds the evidence proved Mr. Morgan's guilt of those counts by a preponderance. The district court placed undue emphasis on the letters, the 10th also believes The letter writers believed Mr. Morgan was innocent or took into account the irrelevant collateral consequences. It was not surprising that a powerful man like Mr. Morgan could get so many people to write on his behalf. The collateral consequences might satisfy some of the needs for specific deterrence, but not for general deterrence, the 10th opines. And many of you can appreciate the 10th's reasoning that Mr. Morgan's loss of his law license is no big deal because he was in the "twilight" of his legal career anyway. Consequently, Mr. Morgan must receive "a significant period of incarceration," "to send a message," not "the slap on the wrist" he got. Again some of the discussion here provides helpful fodder [e.g. substantive reasonableness review "is not a rubber stamp"] for our very own never-successful substantive unreasonableness arguments. On the other hand, the decision evidences a troubling hostility to a probation sentence.
Judge Holmes concurs. He believes the bribery statue prohibits a general quid-pro-quo, a bribe accepted as part of an exchange for political action There need not be any specific connection between the bribe and the particular action. The judge feels the government waived any procedural unreasonableness argument. But he agrees the sentence was substantively too lenient. "The public must have confidence there are consequences when their leaders succumb to temptation," the judge says. But he finds it harder to reach the substantive unreasonableness conclusion than the majority does because it's never easy to reach such a conclusion, despite what the majority says. Judge Holmes finds it especially important that the judge varied a lot from the guideline range and the guidelines are structured to avoid a probation sentence. He stresses that going down all the way to probation is really a tremendous qualitative difference from the guideline range, requiring a "close look at the record" every time that happens. In other words, there has to be a whole lot of mitigation to justify a non-custodial sentence.
U.S. v. Jasso-Chavera, 2015 WL 6735648 (11/4/15) (Okl.) (unpub'd) - A § 2255 movant gets a remand regarding a claim that his counsel did not file a requested notice of appeal. The government attached to its response trial counsel's affidavit that said, after first refusing to sign an acknowledgement of the right to appeal and a statement that he did not want to appeal, Mr. Jasso-Chavez did sign the form. In his reply Mr. Jasso-Chavez said he only signed the form because counsel told him it wasn't convenient for counsel to file the appeal now, but counsel would pursue the appeal later. The district court denied relief without referring to Mr. Jasso-Chavez's reply. The 10th holds Mr. Jasso-Chavez's allegations, if true, were enough to show he didn't knowingly and voluntarily withdraw his appeal request. The 10th says an evidentiary hearing may not be necessary. It suggests the district court might possibly be able to take the "rare" step of making a credibility judgment just based on the affidavits. Perhaps, the 10th suggests, this could be done after the interpreter of the attorney-client conversation submits an affidavit. The 10th helpfully indicates it is presently not a problem that Mr. Jasso-Chavez's reply was not signed under penalty of perjury. Generally, movants should be given a chance to correct the defect, the 10th says.
Waters v. Coleman, 2015 WL 6685394 (11/3/15) (Col.) (unpub'd) - The 10th reverses the summary-judgment denial of qualified immunity regarding various officers, depending on whether the officers acted while the deceased, Mr. Ashley, was struggling or after he was subdued. At the Denver Zoo, a security guard was troubled by Mr. Ashley trying to cool off under a water fountain. A number of officers joined into what turned into a melee with the officers coming to believe Mr. Ashley was suffering from excited delirium, which, if true, meant he would be physiologically more likely to die from a prolonged struggle, but also more likely to physically resist restraint with unusual strength. First, there were punches and multiple tasering and then the Orcutt Police Nunchaku (a plastic controlling device) to control Mr. Ashley's legs. Mr. Ashley was eventually handcuffed, two people put their knees on Mr. Ashleys' shoulders, another kneeled on his legs, and Mr. Ashley's ankles were crossed and put to his buttocks. Then Mr. Ashley remained on his stomach for 2 to 5 minutes with his legs still being restrained. Mr. Ashley vomited, stopped breathing and died. It was not clearly established that officers used excessive force when Mr. Ashley was resisting. But force used for the last 2 to 5 minutes after he was subdued were clearly established to be excessive force. The 10th remands for trial.
Portillo Perez v. Lynch, 2015 WL 6743572 (11/5/15) (unpub'd) - The 10th holds solicitation of prostitution is a crime involving moral turpitude, even if there is no element requiring an overt act and even if the proposed sexual act is not sexual intercourse.
The district court included in the guideline calculation all the bribes Mr. Morgan was charged with, totaling over $684,000 (and 63 counts), even though the jury acquitted him of those charges or was hung on them, except for the one bribery count. involving $12,000 , So Mr Morgan's guideline range calculation shot up to 188 to 235 months. Luckily, the stat max was 120 months (otherwise known as 10 years). The district court varied downward to 5 years probation for the following reasons, among others: the government failed to prove the other payments were illegal, lowering the theoretical range to 41 to 51 months; Mr. Morgan's conviction was based on "very suspect evidence, based on a convicted felon's testimony, resulting in a bill that no one has ever complained about"; Mr, Morgan was adequately punished by the publicity and the loss of his law license and physical and financial health; there were 482 letters of support; and the sentence should be in the range for the one count divided by 63 for the total number of counts charged.
The 10th is extremely unhappy with the sentence. The first thing it does is grant the government a procedural favor. The government only argued substantive unreasonableness. The 10th thought a lot of the arguments sounded more like procedural unreasonableness claims. So it treats them as such, although it acknowledges ordinarily the government's position on appeal would have waived procedural unreasonableness as an issue. The 10th exercises its discretion to consider waived arguments. The 10th reviews for plain error, waxing poetic about the "important purpose" that plain error review serves. The 10th finds a number of procedural errors. (1) The district court was wrong to disagree with the verdict. (2) The court was wrong to consider the collateral consequences of prosecution and conviction. The bad publicity and loss of license and health were not the sentence. It's the sentence that must reflect the seriousness of the offense. The 10th explains that giving Mr. Morgan a break due to the collateral consequences would give an unearned break to the elite, while the less privileged get more prison time. (3) The court did not consider the unwarranted disparity its sentence created. (4) The 10th expresses concern about the "no harm no foul" remark regarding the legislation Mr. Morgan sponsored. That remark minimizes the seriousness of the offense because the real victim of the crime, the 10th says, is faith in honest government. The 10th goes on to find the errors plain, even though the 10th has yet to address the errors. Other circuits have and explicit language of 28 U.S.C. § 994(d) and USSG 5H policy statements clearly prohibit what the district court did And the errors affected the sentence and adversely affected public reputation, etc. because Mr. Morgan undermined our faith in good government and should have gotten significant prison time. As you can see, there are helpful nuggets in this decision for those of us who end up arguing plain error in the future.
The 10th goes on and find the sentence substantively unreasonable because it's "easy" to reach that conclusion. The 10th feels the district court was wrong to consider the other 62 counts for which Mr. Morgan was not convicted as mitigating. On the contrary, the court should have considered them aggravating because the 10th finds the evidence proved Mr. Morgan's guilt of those counts by a preponderance. The district court placed undue emphasis on the letters, the 10th also believes The letter writers believed Mr. Morgan was innocent or took into account the irrelevant collateral consequences. It was not surprising that a powerful man like Mr. Morgan could get so many people to write on his behalf. The collateral consequences might satisfy some of the needs for specific deterrence, but not for general deterrence, the 10th opines. And many of you can appreciate the 10th's reasoning that Mr. Morgan's loss of his law license is no big deal because he was in the "twilight" of his legal career anyway. Consequently, Mr. Morgan must receive "a significant period of incarceration," "to send a message," not "the slap on the wrist" he got. Again some of the discussion here provides helpful fodder [e.g. substantive reasonableness review "is not a rubber stamp"] for our very own never-successful substantive unreasonableness arguments. On the other hand, the decision evidences a troubling hostility to a probation sentence.
Judge Holmes concurs. He believes the bribery statue prohibits a general quid-pro-quo, a bribe accepted as part of an exchange for political action There need not be any specific connection between the bribe and the particular action. The judge feels the government waived any procedural unreasonableness argument. But he agrees the sentence was substantively too lenient. "The public must have confidence there are consequences when their leaders succumb to temptation," the judge says. But he finds it harder to reach the substantive unreasonableness conclusion than the majority does because it's never easy to reach such a conclusion, despite what the majority says. Judge Holmes finds it especially important that the judge varied a lot from the guideline range and the guidelines are structured to avoid a probation sentence. He stresses that going down all the way to probation is really a tremendous qualitative difference from the guideline range, requiring a "close look at the record" every time that happens. In other words, there has to be a whole lot of mitigation to justify a non-custodial sentence.
U.S. v. Jasso-Chavera, 2015 WL 6735648 (11/4/15) (Okl.) (unpub'd) - A § 2255 movant gets a remand regarding a claim that his counsel did not file a requested notice of appeal. The government attached to its response trial counsel's affidavit that said, after first refusing to sign an acknowledgement of the right to appeal and a statement that he did not want to appeal, Mr. Jasso-Chavez did sign the form. In his reply Mr. Jasso-Chavez said he only signed the form because counsel told him it wasn't convenient for counsel to file the appeal now, but counsel would pursue the appeal later. The district court denied relief without referring to Mr. Jasso-Chavez's reply. The 10th holds Mr. Jasso-Chavez's allegations, if true, were enough to show he didn't knowingly and voluntarily withdraw his appeal request. The 10th says an evidentiary hearing may not be necessary. It suggests the district court might possibly be able to take the "rare" step of making a credibility judgment just based on the affidavits. Perhaps, the 10th suggests, this could be done after the interpreter of the attorney-client conversation submits an affidavit. The 10th helpfully indicates it is presently not a problem that Mr. Jasso-Chavez's reply was not signed under penalty of perjury. Generally, movants should be given a chance to correct the defect, the 10th says.
Waters v. Coleman, 2015 WL 6685394 (11/3/15) (Col.) (unpub'd) - The 10th reverses the summary-judgment denial of qualified immunity regarding various officers, depending on whether the officers acted while the deceased, Mr. Ashley, was struggling or after he was subdued. At the Denver Zoo, a security guard was troubled by Mr. Ashley trying to cool off under a water fountain. A number of officers joined into what turned into a melee with the officers coming to believe Mr. Ashley was suffering from excited delirium, which, if true, meant he would be physiologically more likely to die from a prolonged struggle, but also more likely to physically resist restraint with unusual strength. First, there were punches and multiple tasering and then the Orcutt Police Nunchaku (a plastic controlling device) to control Mr. Ashley's legs. Mr. Ashley was eventually handcuffed, two people put their knees on Mr. Ashleys' shoulders, another kneeled on his legs, and Mr. Ashley's ankles were crossed and put to his buttocks. Then Mr. Ashley remained on his stomach for 2 to 5 minutes with his legs still being restrained. Mr. Ashley vomited, stopped breathing and died. It was not clearly established that officers used excessive force when Mr. Ashley was resisting. But force used for the last 2 to 5 minutes after he was subdued were clearly established to be excessive force. The 10th remands for trial.
Portillo Perez v. Lynch, 2015 WL 6743572 (11/5/15) (unpub'd) - The 10th holds solicitation of prostitution is a crime involving moral turpitude, even if there is no element requiring an overt act and even if the proposed sexual act is not sexual intercourse.
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