Friday, January 15, 2016

Unpublished Decisions

U.S. v. Redifer, 2015 WL 7075923 (11/13/15) (Kan.) (unpub'd) - The 10th affirms a conviction for a meth conspiracy, rejecting various evidentiary and instruction contentions, but overturns the district court's drug quantity calculation. First, with respect to the conviction, the 10th holds there was sufficient evidence to prove a conspiracy, even though: some of the conspirators were supporting their drug habits and some were trying to make a profit; some had their own customers; and they benefited separately from their own drug sales and did not pool their money. All that mattered was they had "congruent, if not identical, goals, involving meth distribution to make money." A photo of Mr. Redifer and other conspirators sitting on a couch holding guns was admissible because it was "highly probative" of the close association among the conspirators. It was not grounds for a mistrial that a witness mentioned an arrest of Mr. Redifer. The mention illustrated the witness's close relationship with Mr. Redifer because he retrieved Mr. Redifer's truck 3 times when Mr. Redifer was arrested. Although this made it seem as though Mr. Redifer was in and out of jail, other evidence already showed that, the 10th reasons. Rejection of Mr. Redifer's proposed buyer-seller defense-theory instruction was okay because the buyer-seller rule only applies if the defendant does not plan to resell the acquired drugs for profit. The involvement of a government agent does not require an instruction that an agent cannot be a co-conspirator where, as here, there were plenty of other non-agents involved in the conspiracy. It was not an abuse of discretion for the district court to deny Mr. Redifer's request that he have a table at trial that was separate from his co-defendant's. The 10th suggests the government submission at sentencing of jurors' opinions regarding the credibility of the witnesses would not violate Rule 606(b)(1)'s prohibition against the presentation of juror testimony about deliberations.

The 10th holds the evidence the district court cited for its drug quantity calculation did not support that calculation. The court assumed Mr. Redifer bought 1 1/2 ounces of meth every week for 9 months, but the evidence only supported that amount was bought for 3 months. Mr. Redifer had a temporary falling out with his supplier. There wasn't sufficient evidence to show that when their transactions resumed Mr. Redifer bought the same amount as before, Drug ledgers showed the amounts for some times, but not enough to justify the quantity used to calculate the guideline range. The 10th makes it clear that maybe the district court can justify its quantity determination by some other means. The 10th doesn't address Mr. Redifer's complaint that the district court should have granted a variance, given his lesser culpability and criminal history than the other conspirators. The 10th suggests maybe the district court will want to reconsider a variance after the redetermination of the drug quantity.

It was okay to apply a preponderance, rather than a clear and convincing, burden for enhancements for two two-level enhancements for threatening and physically restraining a drug user who eventually died. The 10th notes that, although it has suggested maybe some day it might apply a clear and convincing standard, this case did not present the extraordinary circumstances necessary for such a far-out proposition. Although the enhancement involved a dead person, the enhancements were not murder-based, the 10th explains.

U.S. v. Davis, 2015 WL 6876095 (11/10/15) (Okl.) (unpub'd) - The 10th grants plain error relief even though Mr. Davis did not address the plain error test. The 10th exercised its discretion to overlook that misstep and accept the government's concession that all 4 prongs of the plain error test were met. The district court imposed as a supervised release condition a complete prohibition on internet use. That condition plainly violated U.S. v. Ullmann, 788 F.3d 1260 (10th Cir. 2015).

Williams v. Warrior, 2015 WL 7292861 (11/19/15) (Okl.) (unpub'd) - The 10th holds the state courts didn't have to hold a trial within a specified period. It only had to begin the process towards trial after Mr. Williams prevailed on his § 2254 petition in the 10th. The 10th had directed that the district court conditionally grant a writ subject to the state's right to retry Mr. Williams within a reasonable time. The district court ordered the writ to issue unless the state "commenced trial proceedings within 180 days " Within 90 days, the state court appointed counsel and scheduled dates for conferences and hearings. The federal district court then granted the state's motion to close the habeas proceedings The 10th finds the district court 's 180-day order was consistent with the 10th's mandate and the state complied with the order by starting trial proceedings. It didn't have to hold a first-degree murder trial within 180 days.

Patterson v. Santini, 2015 WL 7003386 (11/12/15) (Col.) (unpub'd) - The 10th awards a procedural victory to a prisoner challenging BOP's refusal to give him compassionate release. The parties agreed to an administrative closure of the case while the BOP reconsidered compassionate release. The parties agreed Mr. Patterson would withdraw his lawsuit if he was granted compassionate release and he could have the case reopened if the BOP denied release. The district court closed the case, providing, in accordance with a local rule, that the parties may reopen the case upon a showing of good cause. The BOP denied release because, while he had served 2/3 of his sentence, he was only 76 and his medical condition was "unremarkable." Mr. Patterson sought a reopening of his case on the grounds that he agreed to the settlement under duress. The district court found no good cause and denied the request. The 10th says there's good cause when the parties wish to litigate the remaining issues that have become ripe for review. After the denial of release, the remaining issues in the case were ripe for review. So Mr. Patterson had shown good cause. It didn't matter that he did not prove his duress claim. The district court abused its discretion when it refused to reopen the case, the 10th decides.

U.S. v. Orduno-Ramirez, 2015 WL 7003397 (11/12/15) (Kan.) (unpub'd) - The 10th takes jurisdiction of an appeal where Mr. Orduno-Ramirez filed his notice of appeal late because his counsel didn't tell him about the order denying his motion to reopen his detention hearing until the day after the notice of appeal was due. But then the 10th affirms because the issue was not adequately briefed by the same lawyer.

Toler v. Troutt, 2015 WL 7003525 (11/12/15) (Okl.) (unpub'd) - On qualified immunity grounds, the 10th reverses a denial of summary judgment for a prison doctor in a § 1983 case where the doctor kept prescribing different meds for Mr. Toler's back pain than the meds consulting neurosurgeons recommended. Mr. Toler believed the recommended meds were the only meds that had worked for him in the past. Eventually a substitute doctor prescribed the recommended meds, while the doctor was on leave. It is not clearly established, the 10th says, that prescribing medications different from what consulting physicians recommend constitutes deliberate indifference, at least where the doctor continues to monitor the patient's condition. It's just a difference of medical judgment.
Rucker v. Gilmore, 2015 WL 69000891 (11/10/15) (Kan.) (unpub'd) - The ruling here is interesting ion that Wyandotte County Detention Center has a policy that all inmates must send all non-official mail on postcards, rather than in envelopes. Mr. Rucker challenged that policy but, acting pro se, didn't argue well enough to prevail.


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