Friday, May 27, 2016

SORNA Jury Instruction Was Incorrect; Court Proposes Instruction for "Habitually Lives"

United States v. Alexander, 817 F.3d 1205 (10th Cir. 2016): Mr. Alexander’s SORNA conviction is reversed because of an erroneous and prejudicial jury instruction. Mr. Alexander, a sex offender subject to registration requirements, traveled from California to Las Cruces, New Mexico, where he stayed with a friend for three weeks without registering. The issue was whether he changed his residence by doing so. He contended he merely visited his friend while on his way to Texas and did not “habitually live” there as required to find that it was a place he resided. Based on SORNA guidelines issued by the Attorney General, Mr. Alexander requested a jury instruction defining “habitually lives” as “any place where a sex offender intends to make his home, or in which he lives for at least 30 days.” The trial court refused, giving an instruction that omitted the 30-day requirement. Under the circumstances, that was error. The Court proposed language for a jury instruction.

Drugs on Ice

United States v. Mendoza, 817 F.3d 695 (10th Cir. 2016): Court affirms the denial of defendant’s motion to suppress drugs found in two ice chests in the rental car he was driving. Mr. Mendoza was lawfully detained to the time he consented to the search. He was pulled over for speeding. He drove a half mile before he stopped, further than typical. The trooper observed food and trash, suggesting Mr. Mendoza had tried to avoid stopping. He appeared nervous and visibly shaking. When asked for the rental agreement, Mr. Mendoza provided insurance documents. Mr. Mendoza said he was going from Tucson to Memphis to visit family for two weeks, but the rental agreement was for five days, so his travel plans made no sense. He said he was a construction worker, but his hands were clean and well-manicured. The trooper issued a warning, and then asked Mr. Mendoza if he could ask a question. Detaining Mr. Mendoza to ask for an explanation was reasonable. A conversation ensued, in which Mr. Mendoza increased suspicion by forgetting about his two weeks with family and claiming he would return to Tucson in time. Mr. Mendoza’s consent to search was valid. In the search, two ice chests containing seafood were found. One showed signs of tampering. The trooper took apart the ice chest and found drugs. Prying open the already separated inner and out lining of the ice chest and dumping the seafood on the ground was not beyond the scope of Mr. Mendoza’s consent to a general search without limitations. He had been told he could stop the search by honking the horn, but he did not. Once the officers found drugs in the first ice chest, dismantling the second one was reasonable.

Mortgage Fraud Case Remanded for Recomputation of Forfeiture Order

United States v. Courtney, 816 F.3d 681 (10th Cir. 2016): Mr. Courtney was convicted of three counts of wire fraud in connection with a mortgage fraud scheme. He was ordered to forfeit $1,601,825.84, the full value of the fraudulent wire transfers at issue, and pay $493,230.88 in restitution. The trial court committed plain error by not reducing the forfeiture order by the amount the lenders received from the properties through mortgage payments and the sale of the properties.

"But-for" Standard Applies to Charge of Distribution of Controlled Substance Resulting in Death

United States v. Burkholder, 816 F.3d 607 (10th Cir. 2016): Mr. Burkholder was charged with distributing a controlled substance resulting in death. On appeal, Mr. Burkholder contended the district court erred when it refused to instruct the jury that it was required to find that the victim’s death was a reasonably foreseeable consequence of Mr. Burkholder giving him a single Suboxone (buprenorphine) tablet to the victim. The Court holds that 21 U.S.C. § 841(b)(1)(E) does not require proof of proximate causation; the instruction that the district court gave the jury that “but for [the victim] ingesting the buprenorphine distributed by the Defendant, [the victim] would not have died” was a legally adequate statement of the law.

Multiplicity Issue Regarding Distribution of CP Remains Unsettled

United States v. Smith, 815 F.3d 671 (10th Cir. 2016): Mr. Smith was convicted of eight counts of distribution of child pornography, and one count of possession of child pornography. He had made the files available through a file-sharing program. The distribution counts were based on the fact that a law enforcement agent downloaded files from Mr. Smith’s computer eight different times. Mr. Smith contended the eight counts were multiplicitous because he made the files available only once. On plain error review, the Court acknowledged that the law in this circuit is unclear, and because it is unsettled, Mr. Smith loses.

Failure to Preseve Text Messages Did Not Violate Due Process

United States v. Harry, 816 F.3d 1268 (10th Cir. 2016): Mr. Harry was convicted of sexual assault at the home of friends while the victim was sleeping after a party. After the assault, Mr. Harry exchanged text messages with a host of the party. The text messages (except for one) were used against Mr. Harry at trial, but the host’s messages were not. The Court rejects the contention that the failure to preserve the host’s text messages violated Mr. Harry’s right to due process because the messages were not apparently exculpatory before they were lost and in fact were not exculpatory, and the officers did not act in bad faith. The trial court did not err in excluding one text message which Mr. Harry contended showed the victim had been flirting with him, relying on FRE 412. The text message was hearsay and the rule of completeness did not require its admission. The trial court did not err in excluding any evidence, other than from Mr. Harry, of the flirting because there was no evidence of prejudice and Mr. Harry did not reopen the FRE 412 issue at trial. Mr. Harry’s 151-month sentence was reasonable.

"No Trespassing" Signs Will Not Keep Cops Out

United States v. Carloss, 2016 WL 929663 (10th Cir. March 11, 2016): “No Trespassing” signs did not revoke the implied license granted to any citizen, including police officers, to approach a home, knock on the door and ask to speak to the occupants, and thus the officers did not violate the Fourth Amendment by doing so. The trial court’s denial of Mr. Carloss’s motion to suppress evidence found as the result of a consensual encounter with Mr. Carloss after he responded to their knocking was affirmed.

Wednesday, May 18, 2016

US v. Medlock, No. 15-501 (unpublished): The Tenth affirms the district court's grant of a new trial for the defendant based on his trial counsel's ineffective assistance. Mr. Medlock was charged with 18 counts of bank fraud and money laundering; he was convicted of 10 counts of bank fraud and 3 counts of money laundering, and acquitted of 5 counts of bank fraud. He moved for a new trial, arguiing his trial counsel was ineffective for failing to investigate. Mr. Medlock bought Klutts Equipment. In the course of business, he obtained loans from a bank, ONB, and granted ONB a security interest in Klutts assets, including accounts receivable. He was required to make payments into a lockbox account at the bank. Klutts became delinquent, and ONB sent a demand letter. Worried that ONB might freeze the account, Mr. Medlock consulted with attorney Bedford, who advised Medlock to open another account so Klutts could continue to operate. Medlock did so, and ONB did freeze the lockbox account a month later. After Klutts' default, ONB sued and obtained a $2.5 million judgment against Medlock personally and a receiver was appointed for the business. ONB then met with federal investigators, and the government indicted Mr. Medlock, alleging he had defrauded ONB by divering 15 payments made on accounts receivable away from the lockbox account and into other accounts. Mr. Medlock asserted that 1) the payments were not accounts receivable by Klutts but were commission for his personal work as a broker and 2) he created the other accounts based on advice of counsel. Although he provided detailed information regarding the commissions, his attorneys did not investigate in any way or even elicit information from Medlock and other witnesses at trial. As to the second defense, Bedford unexpectedly entered an appearance the night before trial, and on the morning of trial, the attorneys told Mr. Medlock they would not present the advice of counsel defense. The Tenth Circuit agreed with Mr. Medlock's new counsel and the district court that Mr. Medlock's trial counsel were constitutionally ineffective and he was prejudiced. Moreover, the Court rejected the government's claim that Mr. Medlock had to prove prejudice regarding each of the 13 counts of conviction because there was a reasonable probability that trial counsel's errors altered the evidentiary landscape.
Rachel v. Troutt, No. 15-6104 (published): The Tenth holds that the district court should have given the pro se prisoner additional time to respond to the defendants' motion for summary judgment in his civil suit alleging he received inadequate medical care. The prisoner was given 21 days to seek discovery, obtain and review responses that were not even due within the 21-day period, and respond to the summary judgment motion. Mr. Rachel had access to the prison law library for only a few hours each week. Accordingly, he asked for additional time to respond. The district court did not rule on the motion until the day the response was due, so Mr. Rachel had no choice but to respond without the benefit of the requested discovery. He intended to supplement the pleading when he received the requested discovery, but the defendants did not respond. Even though Mr. Rachel had not had any chance to conduct discovery, the magistrate judge recommended the district judge deny the motion for an extension and grant summary judgment to the defendants, in part because Mr. Rachel had not provided evidence of any deficiencies in his medical care or of the prison officials' deliberate indifference. The district court adopted the recommendation. The Tenth Circuit reversed, finding that the district court abused its discretion in denying the extension motion and that Mr. Rachel had shown good cause. However, it briefly visited other issues raised on appeal, and denied most of those.