Unpublished Decisions

U.S. v. Brown, 2015 WL 7352015 (11/20/15) (Kan.) (unpub'd) - The 10th affirms drug convictions, finding no prejudicial evidence errors. The 10th holds it was plain error to admit a state drug conviction resulting from a nolo contendere plea. Evidence Rules 410(a)(2) and 803(11)(a) prohibit such evidence. But the other evidence was so overwhelming that no harm done. The 10th finds Mr. Brown's counsel invited any error when he asked a DEA agent if a government snitch witness had made inconsistent statements and the agent unsurprisingly responded: "I think [the witness] was exceptionally credible." The 10th also finds no abuse of discretion in the district court excluding from evidence a photo of an alleged co-conspirator drinking while surrounded by women. The photo was supposed to show the co-conspirator was "living large," whereas Mr. Brown was not benefiting from the conspiracy's rewards, which apparently included getting to hang out with women.

Burnett v. Miller, 2015 WL 7352007 (11/20/15) (Okl.) (unpub'd) - The 10th sends back for district court consideration whether Mr. Burnett could establish a cruel & unusual punishment violation for being confined in a cell for over 24 hours with no heat when it was below freezing outside and with instructions that he get no food or drink. Otherwise, no relief for a 30-day delay in providing proper treatment for severe chest pains that eventually required three stents to relieve. At worst this was misdiagnosing, not deliberate indifference to Mr. Burnett's medical needs, the 10th explains. On the good news side, the 10th removes the strike the district court imposed for filing a frivolous lawsuit. The resolution of an arguable question of law against a prisoner, especially when the prisoner did experience severe chest pain for a month does not mean the suit was frivolous, the 10th says.