Friday, March 11, 2016

Divided Panel Affirms Dismissal of Civil Rights Suit in Airport Incident

Shimomura v. Carlson, 2015 WL 9466899 (12/29//15) (Col.) (Published) - A split 10th affirms dismissal on qualified immunity grounds of a § 1983 challenge to an arrest. Mr. Shimomira got into a heated discussion with a TSA Agent because an agent was testing his medication with a sampling strip. As he left to catch a plane, the agent followed him. Behind her followed a Denver police officer. At some point Mr. Shimomura' stopped and his roller bag went in the agent's direction. The agent moved suddenly and Mr. Shimomura walked away more rapidly than before. The officer arrested Mr. Shimomura for third degree assault. That offense requires an intentional or reckless mens rea and bodily injury. The 10th finds that probable cause for the arrest was arguable, which is all it takes to qualify for qualified immunity. The video of the incident did not show the bag hitting the agent. But, the 10th says, the officer had a closer view and a different angle than the video camera and he could have seen enough to reasonably think the bag hit the agent causing some slight physical injury or pain and that Mr. Shimomura moved the bag intentionally or recklessly. It didn't matter if he had an innocent explanation for picking up his pace. The 10th holds Mr. Shimomura's detention for 90 minutes constitutes an arrest as a matter of law. That holding works against Mr. Shimomura The 10th finds the agent's alleged withholding of exculpatory evidence and fabrication of evidence was irrelevant because it took place after the arrest.

Judge Tymkovich dissents. He feels that there was a disputed factual issue to be resolved: whether the officer could have reasonably perceived evidence of intent or recklessness or of bodily injury. The evidence did not definitively settle what the officer could see from his vantage point. The judge finds it dubious that anyone from any angle could have reasonably thought the agent felt pain. The issue should be resolved by a jury, the judge contends.

Denial of Civil Rights Suit Affirmed

Jones v. Norton, 809 F.3d 564 (12/29/15) (Ut.) (Published) - The 10th affirms a denial of § 1983 relief in a pursuit and shooting case. The 10th finds a video disproved the plaintiffs' contention that Mr. Murray, the deceased, momentarily halted in response to an officer's command. So there was no seizure governed by the 4th Amendment. Nor, the 10th says, was there submission that would evidence a seizure when Mr. Murray ran towards the officer and fired shots at him. The 10th also does not find evidence supporting the plaintiffs' position that the officer shot Mr. Murray, rather than Mr. Murray shooting himself, as the officer claimed. Mr. Murray died from a contact wound, at the time of the shooting the officer was seen more than 100 yards away where his bullet casings were found, and the officer had no blood on him. The 10th was unimpressed by the fact that to kill himself, Mr. Murray would have had to use his left hand and he was right-handed. The 10th finds no due process violation from the officer shooting at Mr. Murray because Mr, Murray fired first. Nor does the 10th see any problem with the manner of officers' approach to Mr. Murray after he was shot because Mr. Murray was unconscious and so unaware of the officers' behavior.

The 10th rules it was not an abuse of discretion for the district court to find none of the sued city and state officers had a duty to preserve evidence that ended up disappearing or not being collected, e.g., Mr. Murray's gun and the shooting officer's gun The 10th says an FBI agent and the chief of the city police were the people with the most obvious responsibility to preserve the evidence and they weren't sued. The 10th finds nothing wrong with the district court's conclusion that no prejudice was shown as the result of an officer's removing Mr. Murray's clothes, losing samples and tampering with the body, including putting his fingers in the bullet wounds. The 10th acknowledges the officer's actions were at best sloppy and unorthodox, and at worst suspicious, but not grounds for relief. The 10th also holds the Ute Treaty does not provide rights that can be enforced through § 1983. The 10th finds no evidence of racial animus in the pursuit of Mr. Murray, despite the officers' knowledge of Mr. Murray's race and the racial tension in the local culture.

Unpublished Decisions

U.S. v. Luster, 2015 WL 9463102 (12/28/15) (Kan.) (unpub'd) - Another § 3582(c)(2) motion fails due to Justice Sotomayor's concurrence in Freeman and the 10th's strict interpretation of it. It didn't matter if the judge's statements at the sentencing hearing and the judge's statement of reasons might indicate the Rule 11(c)(1)(C) sentence was based on a particular guideline range that had been lowered. All that matters is what the plea agreement said and it said nothing about a guideline range.

Tennyson v. Raemisch, 2015 WL 9487908 (12/30/15) (Col.) (unpub'd) - Another prisoner plaintiff's disturbing claims bite the dust. The 10th holds Mr. Tennyson cannot get relief for the prison depriving him of hygiene products. He did not note any injury that resulted from that deprivation. No relief also where a prison doctor stopped prescribing Zantac for Mr. Tennyson even after Mr. Tennyson told the doctor he would be "in pain all the time" without the medication. The 10th says Mr. Tennyson's warning did not put the doctor on notice that the resulting pain and discomfort from the lack of Zantac would rise to the level necessary for an Eighth Amendment violation. "Not every twinge of pain puts a medical professional under a constitutional obligation to act," the 10th assures us.

Jolliff v. Corrections Corporation of America, 2015 WL 9466839 (12/29/15) (okl.) (unpub'd) - The 10th holds that Mr. Jolliff did not sufficiently exhaust his administrative remedies, even though he never got a response to his initial grievance. Under the corrections department's policy, Mr. Jolliff was obligated to file another grievance complaining about the non-responsiveness. Since he did not do that, he's out of luck.

Petitioner Gets No Relief from Life Sentence Despite Trial Counsel's Failure to Warn Him of Consequences of Rejecting Plea Offer

Milton v. Miller, 2016 WL 502867 (2/9/2016) (OK): In Mr. Milton's first appeal to the 10th Circuit, the court concluded that the Oklahoma appellate court’s ineffective assistance analysis was contrary to clearly established federal law and thereby ruled that Milton had overcome the bar in 28 U.S.C. § 2254(d)(1). 744 F.3d 660, 669-70 (10th Cir. 2014). The court then sent his habeas petition back to the district court for an evidentiary hearing. Unfortunately, after the evidentiary hearing, the panel did not see things Milton’s way. Basically Milton argued that his appellate attorney on direct appeal was ineffective for not raising an ineffective assistance of trial counsel issue. Milton had been charged with drug trafficking and a drive-by shooting. He said that the prosecutor had made several offers to his trial lawyers before the preliminary hearing but they did not relay them to him. The testimony at the evidentiary instead showed that Milton had been told of the offers. However, one of his trial lawyers did not tell him that if Milton succeeded in getting the drive by shooting charge dismissed at the preliminary hearing the prosecutor said he would seek the mandatory life without parole sentence for the drug trafficking case. Milton argued that without knowing about the prosecutor’s warning he believed he could reject the offers, defeat the drive-by shooting charge at the prelim and thereby reduce the number of charges he was facing. There was a reasonable probability that Milton would not have gambled and instead accepted the plea bargain for both charges if his lawyer had given him this information. Had he taken the offer Milton would have served close to 18 years rather than the life sentence imposed. The panel was not persuaded. It said that Milton didn’t explain why he would reasonably believe the prosecutor would reduce the drug trafficking charge to one not carrying a mandatory life without parole sentence because Milton somehow got a dismissal in the drive-by shooting case. The panel concluded, “to any reasonable jurist, Milton’s poor ‘gamble’ was the cause of his current predicament, not the lack of any additional ‘warning’ from his attorney.” Besides, Milton knew that if he went through with the preliminary hearing, the offers resolving both cases with a concurrent sentence would expire. That being said, one can see that some ‘reasonable jurists’ might understand that Milton thought he would only have to negotiate an agreement on one charge if he got the other dismissed. If he wasn’t told the prosecutor intended to pursue mandatory life, how would he know that wasn’t a possibility? An awful result for a petition that seemed to hold some promise.

Court Finds No Error, But Clarifies Interpretation of Standard Supervised Release Conditions

United States v. Muñoz, 2016 WL 502863 (2/9/2016) (NM): The defense argued that each of the twelve standard conditions of supervised release imposed on Muñoz were substantively unreasonable. He pointed out that many of these conditions were vague and did not adequately inform Muñoz as to what he could and could not do. The panel rejected the substantive unreasonableness argument but helpfully defined certain words and phrases in the conditions that may protect our clients against overzealous probation officers. For example, the condition that a person not associate with someone convicted of a felony does not extend to casual or chance meetings. Also a person may invoke his right to remain silent although a standard condition requires him to answer truthfully the questions put to him by the probation officer. The panel interpreted the condition that the person support dependents and meet other family obligations to mean that family members who rely on him for “financial support” must be “provide[d] with a home and the necessities of life.” Regarding notifying the probation officer at least 10 days before any change in residence or employment, the panel said the person must give notice “of an event only if he foresees it.” Finally, the condition that a person not frequent places where controlled substances are sold illegally or distributed forbids a person from going to such places “only if he knows that drugs are used or sold there.” The panel was not so helpful with the other standard conditions. However, the sentencing commission has proposed amendments to the standard conditions which more accurately define the proscribed conduct. They are available here.

Sufficient Evidence Supported Tax Evasion Convictions; District Court Properly Refused to Include Back Taxes Paid When Determining Loss

United States v. Vernon, 2016 WL 502835 (2/9/2016) (KS): Vernon, a doctor, was convicted on five counts of attempted tax evasion. She challenged the sufficiency of the evidence against her. Primarily she argued that the legal theories upon which the government relied to prosecutor her - sham corporation, assignment of income, alter ego, substance over form - did not prove the elements of willfulness and the existence of a tax deficiency. The panel disagreed. It ruled that these theories were consistent with the general underlying principles of federal income taxation, especially that gains should be taxed to those that earn them. Her willfulness was evident in the numerous ways she schemed to avoid paying income tax: setting up sham corporations in her partner’s name, reassigning income from that corporation to herself, acting as the alter ego of a corporation she did not own and doing the work mandated by the corporation’s employment contracts and redirecting the money paid to the corporation to herself. Vernon also argued the court’s instructions to the jury on these legal theories was incorrect and described acts that were not criminal. Again, for the same reasons, the panel disagreed. Lastly, Vernon said the court erred calculating the tax loss. She said that the back taxes she paid before she was charged should not have been used to calculate loss. The panel saw it differently because the sentencing guidelines define tax loss under 26 U.S.C. § 7201 as the intended loss and not the actual loss. The fact that she was ultimately forced to pay those back taxes, interest and penalties is irrelevant since she attempted to evade paying taxes even before the misbehavior described in the indictment.

Child porn convictions and sentence affirmed.

U.S. v. Smith, 2016 WL 767054 (2/29/16) (Okla.) - Mr. Smith's convictions of eight counts of distribution were not clearly multiplicitous in violation of double jeopardy. The Tenth rejects under the plain error standard his argument that the proper unit of prosecution must be based on instances of making porn available, which he argued occurred once, not every instance of downloading. Because no Tenth Cir. precedent has addressed this multiplicity argument and the only precedential decision from another circuit rejected it, the plain error standard was unmet. The district court properly refused to consider at sentencing Mr. Smith's pro se objection to consideration of his pending state court charge because he was represented by counsel who declined to supplement his argument. Anyhow, the state charge did not affect the bottom-of-the-guidelines sentence imposed.

Government's Failure to Preserve Text Messages Did Not Violate Defendant's Due Process Rights

U.S. v. Harry, 2016 WL 767028 (2/29/16) (NM) - The Court affirms a sexual assault conviction that stemmed from post-party conduct while the victim was sleeping. The government did not violate Mr. Harry's due process rights by failing to preserve text messages sent to him by a friend present at the party. The text messages were requested from the phone company 15 days after the text message exchange, but the phone company responded that it did not store messages after two weeks. Mr. Harry did not satisfy his burden to prove the lost text messages would have been expected to play a significant role in his defense and thus would have had apparent exculpatory value. He also did not show bad faith. There was no evidence that anyone intentionally deleted the lost messages.

The Tenth also rejects Mr. Harry's claim that the district court erred by admitting into evidence text messages he sent, while excluding under Rule 412 one text in which he stated "[s]he was all over me the whole night." The Tenth finds Mr. Harry failed to establish the relevance of the excluded text message and the district court properly found that his purpose was to introduce the text to demean the victim. With respect to other excluded evidence that the victim had been flirting with him, Mr. Harry failed to show its relevance to his defense and its exclusion was proper under Rule 412. Mr. Harry did not rebut the presumption that his within-guidelines 151-month sentence was reasonable, the Tenth says, and so it affirms the sentence as substantively reasonable.

Unpublished Decisions

U.S. v. Franco, 2015 WL 8538121 (12/11/15) (N.M.) (unpub'd) - The 10th contradicts the suggestion in the Garcia-Escalera case reported in the a previous update regarding the changes in Fed. R. Crim. P. 12. . This panel says in a footnote that the elimination of the word "waiver" from Rule 12(e) made no substantive change. This is what the advisory notes say, says the 10th. So when counsel doesn't raise a specific suppression claim below then the issue is waived, not just forfeited, in the 10th. In this case, Mr. Franco contended that the police lacked reasonable suspicion to stop him when he stopped in the middle of the road with the car's lights off and then backed up. On appeal, Mr. Franco argued the officer unreasonably interpreted N.M. Stat. 66-7-349. This wasn't part of Mr. Franco's argument below. Mr. Franco argued below he was legally parked. The 10th refuses to consider the argument on waiver grounds. Mr. Franco had 10th Circuit law on his side to challenge the officer's interpretation before the district court, but he didn't take advantage of that, the 10th claims. There was no good cause to fail to make the argument.

U.S. v. Mata-Rodriguez, 2015 WL 7973799 (12/7/15) (Kan.) (unpub'd) - The 10th holds that, not only was the district court not required to order a new PSR and hold an evidentiary hearing with respect to Mr. Mata-Rodriguez's § 3582(c)(2) motion, it would have been legally improper to do so. Mr. Mata-Rodriguez wanted to present evidence of his rehabilitation. The district court denied that opportunity and imposed the highest end of Mr. Mata-Rodriguez's amended guideline range, just as the court had imposed the highest end at the first sentencing when a higher range applied. The 10th goes on and on about how a § 3582(c)(2) sentencing is not a full resentencing.

U.S. v. Campos-Lucas, 2015 WL 8288101 (12/9/15) (Col.) (unpub'd) - The 10th affirms an upward variance in a reentry supervised-release revocation case. The Colorado judge imposed a below-guideline range sentence of 4 months for an illegal reentry. During the sentencing Mr. Campos-Lucas promised not to return. Four months after he was removed, he was found in Arizona. He received a 6-month sentence for illegal reentry there. . The sentence range for his supervised release violation was 5 to 11 months. At the revocation hearing, the judge exclaimed: "This is a first in my experience to have a defendant promise not to return under oath only to reenter within such a short time after that solemn pledge. The conduct here represents the ultimate expression of abject disrespect and contempt for our judicial system and this court [that is, me]." So the court imposed an 18-month sentence. That sentence was not substantively unreasonable, the 10th rules, since breach of trust is the gravamen of revocation sentencing and Mr. Campos-Lucas got an apparently unwarranted break when he previously received a downward variance.

U.S. v. Taylor, 2015 WL 7975854 (12/7/15) (Okl.) (unpub'd) - The 10th relies on U.S. v. Madrid, 805 F.3d 1204 (10th Cir. 2014), to vacate a sentence relying on the crime-of-violence residual clause for an enhancement under § 2K2.1(a)(2) firearms. Mr. Taylor showed sufficient prejudice to satisfy the 3rd & 4th prongs of the plain error standard because his guideline range was reduced from 100-120 months to 70-87. months.

Griffin v. Scnurr, 2015 WL 8479630 (12/10/15), amended in an irrelevant way at 2016 WL 158718 (1/14/16) (Kan.) (unpub'd) - The 10th is unimpressed by Mr. Griffin's contention that his procedural default problem is overcome by his innocence. It doesn't matter if he may be innocent under the state's new interpretation of the intent requirement for second-degree murder. Procedural default cannot be overcome through innocence based on judicial opinions issued after a defendant's trial.

Moore v. Diggins, 2015 WL 8479678 (12/10/15) (Col.) (unpub'd) - The 10th reverses a summary judgment grant to a Denver jail nurse and doctor. Mr. Moore alleged as follows. At intake Mr. Moore told the nurse he needed a cane or walker because of stability issues. Without adequate support, he told her, he was in tremendous pain standing, sitting and walking She responded: " don't have time to verify your request because I have 40 other inmates to deal with. You'll have to deal with it upstairs," where he would be staying. She refused Mr. Moore's request to see her supervisor. Once upstairs a deputy told Mr. Moore the medical unit was closed for the day. The next day, after Mr. Moore filed a grievance, he saw a doctor who confirmed that Mr. Moore had been prescribed a cane or walker, but said he didn't currently have a cane or walker. In response to Mr. Moore's request to call other medical departments to see if they had what he needed, the doctor responded: "not right now." Despite Mr. Moore's complaints of tremendous pain, the doctor sent Mr. Moore away without a cane or walker. During Mr. Moore's 2d day in jail, his left hip gave out. He collapsed to the floor, causing additional pain. Since then he's been in tremendous pain, even though the jail gave him a walker, which mysteriously appeared 3 hours after the fall. The 10th holds Mr. Moore alleged enough to establish sufficient harm and deliberate indifference to his medical needs.

Marijuana Dispensary Must Disclose Documents in Tax Court

Feinberg v. C.I.R., 2015 WL 9244893 (12/18/15) (12/18/15) (Col.) (Published) - The 10th refuses to grant on Fifth Amendment grounds a writ of mandamus to prevent the government from obtaining in discovery documents showing the nature of the business of a Colorado marijuana dispensary. Total Health Concepts ["THC"] challenged in tax court the IRS's refusal to recognize business expense deductions because the enterprise is illegal under federal law. THC contended revealing the nature-of-business documents would violate its owners' privilege not to incriminate themselves, The government responded that the AG's memo stating the policy that the AG would not prosecute Colorado marijuana dispensaries as long as they followed state law assures that any documents discovered would not be used to prosecute THC. The 10th is skeptical of that argument, given that the current Attorney General or a new AG could change that policy. But 10th precedent says now is not the time to address the issue. A later appeal could redress the problem, the precedent says, either on an appeal of a contempt citation or on appeal after disclosure and a trial. The 10th and the government seem to agree that at a criminal trial the THC owners could move to suppress the discovered materials on the grounds that they were involuntarily produced.

Unpublished Decisions

Perez v. Dowling, 2015 WL 8750538 (12/15/15) (Okl.) (unpub'd) - A holding regarding Rodriguez v. U.S., 135 S. Ct. 1609 (2015) [officers can't prolong a traffic stop longer than necessary for the stop's purpose] that is possibly helpful to us, although a bad thing for Mr. Perez's § 2254 chances. Mr. Perez argued his petition was not untimely because he filed the petition within one year of the day Rodriguez was decided. The 10th holds Rodriguez is not a new rule and so didn't extend Mr. Perez's deadline for filing the petition. This holding can be used to counter a government argument that officers relied in good faith on pre-Rodriguez law that justified their conduct. See Davis v. U.S., 564 U.S. 229 (2011) (no suppression for search in violation of Arizona v. Gant, 556 U.S. 332 (2009), where police relied on binding pre-Gant appellate precedent allowing the search). Also no equitable tolling where the pro se petitioner explained: "I can't speak English. I'm Mexican-Latino. I'm not American. I can't get help here a lot." He also alleged his lawyer took advantage of him because he was Latino. The 10th "can sympathize with" Mr. Perez's difficulty, but being a non-English speaker is not an extraordinary circumstance external to Mr. Perez that would justify equitable tolling, the 10th concludes..

U.S. v. Villegas, 2015 WL 8593429 (12/14/15) (N.M.) (unpub'd) - The 10th affirms a traffic-stop suppression denial and the government's refusal to seek a 3E1.1(b) reduction. The 10th finds the officer had reasonable suspicion to believe Ms. Villegas violated New Mexico's lane-maintaining statute, N.M. Stat. 66-7-317. The officer claimed he saw her go onto the shoulder once while she was watching the officer in her rear-view mirror. The 10th assumes the statute required the presence of a safety concern. It rules the district court did not clearly err in finding such a concern based on the officer's testimony that he just happened to see tire debris on the shoulder, although he couldn't specify its proximity to Ms. Villegas's car. The 10th also finds the traffic-stop encounter became consensual when the officer returned Ms. Villegas's paperwork, said she was "good to go," she reached for the door of the patrol car she was sitting in , the officer asked if he could ask her more questions and she agreed. Her reaching for the door showed she knew she could leave. Being enclosed in a patrol car didn't render involuntary her consent to further questioning and subsequent consent to search.
After the denial of the suppression motion, defense counsel sought a conditional plea agreement, but the prosecutors refused. Counsel sought a bench trial. The prosecutors insisted on a jury trial. Both parties filed pretrial motions in limine and other typical pleadings. At trial counsel presented a "minimal defense" in the 10th's words. The district court gave Ms Villegas the 2-level reduction for acceptance of responsibility, but the government refused to move for the additional level under § 3E1.1(b). The 10th says the district court did not clearly err in denying the one level because, unlike other defendants in cases Ms. Villegas cited, she did not plead guilty after her motion to suppress was denied. Irritatingly, the 10th doesn't address the fact that Ms. Villegas offered to enter a conditional plea. According to the 10th, she "forced the government to present its case at trial," and do extra work, such as filing motions and responding to defense motions.

U.S. v. Jones, 2015 WL 8757254 (12/15/15) (N.M.) (unpub'd) - The 10th suggests that, a defendant can never obtain § 3582(c)(2) relief in a case involving an 11(c)(1)C) plea agreement, absent a specific reference to the defendant's criminal history category.

U.S. v. Stanfiel, 2015 WL 9014182 (12/16/15) (Okl.) (unpub'd) - The 10th affirms the denial of 3582(c)(2) relief because of less than an ounce of meth. In 1997 Mr. Stanfiel's offense level was 36. The district court added 135.9 grams of actual meth to 89 % of 55 ounces of meth, i.e., 48.95 ounces of actual meth. With reference to the latter calculation, the district court found Mr. Stanfiel was involved with "approximately 48 ounces or 48 and a fraction" of actual meth. At that time the .95 ounce made no difference for guideline purposes. Under amendment 782, Mr. Stanfiel stays in offense level 36 if the 48.95 figure applies because added with the 136.9 grams the total is just above 1.5 kilograms. Mr. Stanfiel argued the court should use the "approximately 48 ounces" finding. Using that finding leads to a total of 1.497 kilograms, just barely in offense level 34. The 10th says the "district court's failure to specify the precise fraction does not preclude us from using the numbers provided in the findings to determine the quantity equals 48.95." The 10th also rejects Mr. Stanfiel's ex post facto argument relating to the drug equivalency tables. The 10th says cases arising under § 3582(c)(2) have no bearing on the ex post facto clause because they cannot increase the defendant's punishment."

U.S. v. Bayatyan, 2015 WL 8600018 (12/14/15) (Okl.) (unpub'd) - The 10th proffers another reason to reject an ex post facto clause argument in a § 3582(c)(2) case. Mr. Bayatyan received a downward variance at his first sentencing hearing. This meant that under the current § 1B1.10 he could not get any reduction in sentence because his amended guideline range was above the variant sentence he got. Under the § 1B1.10 in effect at the time of his sentencing, a district court could subtract from the amended guideline range the amount of the original variance. Mr. Bayatyan argued the ex post facto clause required use of the version of § 1B1.10 at the time of his original sentencing. However, the 10th says there's no ex post facto clause problem because the old § 1B1.10 did not include the 2014 amendment 782 So, the old § 1B1.10 didn't require retroactive application of the new amendment. So Mr. Bayatyan is not any worse off than he was in 1997.

U.S. v. Mullins, 2015 WL 9244908 (12/18/15) (Okl.) (unpub'd) - The 10th holds it does not violate due process to use remote-in-time (25-30 years ago) prior sexual abuse to impose a pattern-of-abuse enhancement under § 2G2.2(b)(5) in a child porn case. Troublingly the 10th justifies its conclusion in part on the ground that there is an increased risk of recidivism associated with sexual abuse and exploitation of children. As we know, the opposite is true. Nonetheless, the 10th's "reasoning" suggests that maybe the use of very old non-sex-abuse crimes for enhancement may violate due process. The 10th also finds evidence of the prior sex abuse reliable enough. Officers could assess the credibility of Mr. Mullins' now-adult stepson based on an in-person interview. Mr. Mullins' wife reported the stepson had confronted Mr,. Mullins about the abuse. And, the 10th says "perhaps most significantly," at the sentencing hearing, Mr. Mullins did not deny the abuse nor call the stepson to testify or confront him even though the stepson attended the hearing.

U.S. v. Welch, 2015 WL 9009948 (12/16/15) (N.M.) (unpub'd) - The 10th holds the government was not bound by its post-plea-agreement oral promises regarding Ms. Welch's sentence. Ms. Welch helped 3 men escape from an Arizona prison. During the subsequent fleeing and hiding out, an Oklahoma couple was killed in Quay County. To avoid the death penalty, she entered a plea agreement in which she agreed to cooperate with the prosecution. The government promised to move for a § 3E1.1(b) reduction, dismiss certain counts, refrain from further charges & consider filing a § 5K1.1 motion. Ms. Welch fulfilled her part of the bargain, testifying at John McClusky's death penalty trial [he was convicted, but the jury did not unanimously vote for the death penalty]. Ms. Welch alleged that 2 weeks before sentencing, the government promised not to oppose a 20-year sentence and to defer to the district court's sentencing discretion. It doesn't seem like the government denied that something like that happened. At sentencing, the government disagreed with Ms. Welch's request for a 20-year sentence and argued a 40-year sentence satisfied the § 3553(a) requirements because she made a decision to kill and lacked a moral compass. The district court imposed a 40 year prison term.

The 10th holds the government was only obligated to fulfill its written promises, which it did. The 10th is impressed by the fact that the government's § 5K1.1 motion led to a reduction from a guideline sentence of about 125 years all the way down to 40 years for a woman in her mid-40's. The 10th finds the plea agreement did not allow for oral modifications. The 10th acknowledges that an oral modification might be enforceable anyway. But it didn't happen here, the 10th says, because Ms. Welch did not give any new consideration for the promises. She had already done what she could do for the government. There was no detrimental reliance. Finally, for the same reasons noted above, the 10th rules the district court did not clearly err when it found the government did not act in bad faith when it made those oral promises.

Patrick v. Patton, 2015 WL 9239238 (12/17/15) (Okl.) (unpub'd) - The 10th says cruel and unusual punishment analysis focuses on the sentence imposed for each specific crime, not on the cumulative sentence for multiple crimes. That principle justifies rejecting Mr. Patrick's contention that it was a violation of the Eighth Amendment to run his sentences cumulatively for a total 55-year sentence for a single incident involving multiple crimes.

Garnishment Order Reversed

U.S. v. Martinez, 2015 WL 9009626 (12/16/15) (n.M.) (Published) - the 10th reverses the district court's grant of a writ of garnishment of Mr. Martinez's retirement funds. The government became unhappy with the pace of Mr. Martinez's payments towards the $2.7 million restitution amount. So it sought to garnish his two retirement funds. But the 10th holds the government cannot garnish when a defendant doesn't owe any money. It can't enforce beyond the payment terms of the restitution order. The district court had ordered Mr. Martinez to make monthly payments of 25% of his net income. The reason he didn't pay much was because he had no monthly income. The government never claimed he was in arrears. The 10th stresses it's up to the district court, not the government, to decide how a defendant is to pay restitution. And the district court did not order the restitution to be paid immediately. Orally the court ordered Mr. Martinez to pay a fixed amount of 25% of his disposable income. This overrode the written order of "no less than"25%. The 10th also notes the schedule of payments section of the written judgment where the court checked the box indicating the restitution was not immediately due. The 10th goes so far as to indicate that, if a court provides for instalment payments, restitution is not due immediately. The 10th rejects the government's claim that it can garnish even if no money's owed. That would contravene the specific and detailed scheme Congress laid out for district courts to determine how restitution is to be paid, whether in-kind or installments or both, based on the defendants' financial situation. The 10th distinguishes and/or disagrees with a 5th Circuit case, going to the extent of looking at the district court records in that case to see what the judgment in that case said. The 10th concludes either the 5th Circuit decided differently because it dealt with a different judgment or because it didn't consider the comprehensiveness of the statutory scheme.

unpublished decisions

U.S. v. Garcia-Escalera, 2015 WL 7770205 (12/3/15) (Okl.) (unpub'd) - Mr. Garcia-Escalera relied on Franks to challenge a search warrant affidavit. The district court rejected that claim and also added that the affidavit was sufficient on its face to establish probable cause. On appeal Mr. Garcia-Escalera argued there was insufficient corroboration of the affiant's claims to establish probable cause. The 10th holds that under the old version of Fed, R. Crim. P. 12(e), Mr. Garcia-Escalera waived this argument because he didn't raise it below and the district court's sufficiency conclusion likely did not address Mr. Garcia-Escalera's corroboration issue. In a footnote, the 10th suggests that maybe revised rule 12(b)(3) now does not call for the harsh conclusion that a forgotten issue is waived. Maybe it would just be forfeited, [meaning plain error review might be available]. The old rule referred to a party waiving, absent good cause. But now the rule only refers to a suppression issue raised beyond the district court's motions deadline as being "untimely."

Galbreath v. the City of Oklahoma City, 2015 WL 7873587 (12/4/15) (Okl.) (unpub;d) - The 10th holds a disorderly conduct ordinance that prohibited "causing public alarm without justification," was not unconstitutionally vague as applied to Mr. Galbreath. As previously reported, the 10th reversed a summary judgment grant. The case went to trial and Mr. Galbreath lost. As you recall, an officer answered a 911 call to a park where he found Mr. Galbreath singing or humming and twirling and spinning a stick [Mr. Galbreath said it was a cane]. According to the officer, Mr. Galbreath was unsteady on his feet and speaking incoherently. Mr. Galbreath explained that he was doing his exercises as part of physical therapy for a bone disease affecting his hips damaged by his former career as a ballet dancer, and giving candy to children who answered his questions correctly. Mr. Galbreath became agitated at the officer's interrogation. The officer arrested Mr. Galbreath, but the city later dropped the charges. The 10th concludes a reasonable jury could conclude Mr. Galbreath did not provide justification for his actions. The 10th finds the giving candy to children "potentially troubling" and finds that did not explain his stick twirling, singing and behaving erratically.

Han-Noggle v. City of Albuquerque, 2015 WL 7873438 (12/4/15) (N.M.) (unpub'd) - The 10th affirms the dismissal on qualified immunity grounds of the lawsuit by the family of deceased attorney Mary Han regarding the APD investigation of Ms. Han's death [immediate assumption it was a suicide; no interviews of neighbors, family and friends; not collecting physical evidence; not preserving fingerprints; no attempt to identify the last person who saw Ms. Han alive; 26 to 50 people trampling the scene; not inventorying Ms. Han's diamond rings, cell phone and laptop, all of which later disappeared]. The plaintiffs alleged APD's conduct deprived them of access to the courts to pursue a wrongful death action. The 10th finds no basis for relief because the plaintiffs did not adequately describe what kind of wrongful death action they could have filed. The 10th says the family did not provide a theory as to how Ms. Han died or who allegedly caused her death. The 10th also affirms the attorney fees' award against the plaintiffs, which the district court justified by concluding one of the 5 claims was frivolous.

Robinette v. Fender, 2015 WL 7753352 (12/2/15) (Col.) (unpub'd) - The 10th refuses to consider an issue where the opening brief contained "only conclusory allegations, a few statutory references, and a handful of case citations with no analysis."