ADA Who Signed Off On Search Warrant Not Responsible for Subsequent Highly Unreasonable Forced Medical Intrusions

Eckert v. Doughterty, No. 15-2204 (10th Cir. 9/14/16) (unpublished): This is the infamous case of Mr. Eckert, who was stopped by for failing to obey a stop sign in Deming, NM, and who ended up being subjected to numerous humiliating and painful medical procedures, including a colonoscopy, because his "posture [was] erect and he kept his legs together," leading Officer Chavez to suspect Mr. Eckert had drugs concealed in his rectum. This particular appeal involved District Attorney Dougherty, who was granted qualified immunity by the district court. The Tenth Circuit affirmed the grant of qualified immunity and the dismissal of Mr. Eckert's lawsuit against Mr. Dougherty. ADA Dougherty had approved Officer Chavez's application for a search warrant, in which the officer had included the information that a narcotics dog alerted to the driver's seat and that two other officers said Mr. Eckert was known to conceal drugs in his anal cavity. This information was false. No narcotics were ever found. The claim against Mr. Dougherty was primarily based on his approval of the search warrant. The Tenth Circuit agreed that the affidavit established probable cause. Officer Chavez could reasonably rely on the statements of other law enforcement officers. The magistrate (and Mr. Dougherty) could reasonably rely on the officer's evaluation of Mr. Eckert's posture. Additionally, there was the dog alert. Given all this, an objectively reasonable official could find probable cause. For all these reasons, Mr. Dougherty was properly granted qualified immunity and the case against him dismissed. However, the panel stated in the beginning that "[n]othing in this decision ... should be read to condone any of the procedures, given the significant privacy interests in avoiding forced medical intrusions."

OIG Report on DEA's Use of Informants

The Office of the Inspector General of the Deportment of Justice released a report on the DEA's use of informants in drug cases today. The Audit of the Drug Enforcement Administration's Management and Oversight of its Confidential Source Program, Audit Report 16-33, is available here. Anyone dealing with federal drug cases must look at this report.

Unpublished decisions

U.S. v. Aguilar-Ramos, 2016 WL 1599775 (4/21/16) (N.M.) (unpub'd) - The 10th holds that California robbery in violation of Cal Penal Code § 211 is a "crime of violence" under § 2L1.2, even under the force part of § 211. The 10th rejects Mr. Aguilar-Ramos's attempt to distinguish the 10th's previous unfavorable decision regarding § 211 in U.S. v. Castillo, 811 F.3d 342 (10th Cir. 2015), on the grounds that Castillo only addressed § 211's fear part. The 10th said "all crimes under § 211 were crimes of violence under § 2L1.2," so end of story. Anyway, the 10th thinks the force argument is unpersuasive. Mr. Aguilar-Ramos relied on the notion that § 211 did not require enough force under the 2010 Johnson case, 559 U.S. 133. But the 10th notes it is talking about generic robbery and generic extortion, not the physical force clause. Possibly helpfully for our robbery/physical-force-clause arguments, Judge McHugh concurs. She observes that generic robbery only requires sufficient force to overcome a victim's resistance, which implies that generic robbery force may not be as much as the 2010 Johnson case requires.

U.S. v. Bowman, 2016 WL 1598745 (4/21/16) (Okl.) (unpub'd) - The 10th holds a defendant cannot challenge a career offender designation based on Johnson in a § 3582(c)(2) motion.

Banks v. Katzenmeyer, 2016 WL 1598669 (4/21/16) (Col.) (unpub'd) - The 10th reverses a district court's dismissal of a prisoner's First Amendment retaliation claim. Mr. Banks alleged that he told Captain Kazenmeyer he planned to pursue legal action against the captain for "certain hostile actions." According to Mr. Banks, the captain responded that the captain would instruct the staff to write up Mr. Banks at random. Lo and behold, the staff did write up "multiple fabricated reports" within six days. These accusations were enough to allege: the engagement in a constitutionally protected activity; a sufficient injury, (even though Mr. Banks did not say what happened following the reports); and that the reports would not have been made but for Mr. Banks' announcement that he intended to pursue legal action.

A Not-so-Little Change in Constructive Possession Law

The Tenth Circuit reversed years of law on the constructive possession of contraband in United States v. Cody Little, 2016 WL 3902581 (10th Cir. July 19, 2016). Henceforward, “constructive possession exists when a person not in actual possession knowingly has the power and intent at a given time to exercise dominion or control over an object.” Id. at *3. This decision overruled a line of cases beginning with United States v. Colonna, 360 F.3d 1169 (10th Cir. 2004), which had held that “[i]t is not necessary to show that the defendant intended to exercise ... dominion or control” for purposes of constructive possession. Id. at 1179 (emphasis added). The Court also provided some good language on the aiding and abetting and deliberate ignorance pattern instructions. The Tenth Circuit's Pattern Jury Instruction on constructive possession is no longer accurate.

Despite critical commentary from legal academics and other circuits, the Court had rejected prior challenges to its pattern constructive possession instruction because “a panel may not overrule Colonna ‘[a]bsent intervening Supreme Court or en banc authority to the contrary.’” 2016 WL 3902581 *2 (quoting U.S. v. Ledford, 443 F.3d 702, 716 (10th Cir. 2005). This time, it found that intervening Supreme Court authority in Henderson v. United States, 135 S.Ct. 1780 (2015), which had observed that “[c]onstructive possession is established when a person, though lacking physical custody, still has the power and intent to exercise control over the object.” Id. at 1784 (emphasis added). Accordingly, it overruled its prior line of cases and brought Tenth Circuit law into agreement with the majority of other circuits.

The deliberate ignorance instruction was also improper. The Court affirmed that this instruction should only be given in the limited circumstance “when evidence has been presented showing the defendant purposely contrived to avoid learning the truth.” 2016 WL 3902581 *5. The Court rejected the government’s argument that evidence Little should have known about the firearms was sufficient to support the instruction. It also found fault with the trial court for allowing the instruction based on evidence Little knew or should have known about the firearms in the well house, stating, “Allowing a deliberate ignorance instruction premised on evidence of constructive possession reduces the standard for conviction from knowledge to recklessness or negligence.” Id.

However, as so often happens, the fact that two instructions central to the government’s case were erroneously given was not grounds for reversal because two members of the panel thought the evidence that Little knew about the firearms in the well house was overwhelming.

Judge Holmes dissented on this point, and would have reversed and remanded based on giving an incorrect instruction on constructive possession.

Although Little will not receive a third trial, he will be resentenced. Following the decision in United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015), the government agreed that Little’s prior New Mexico convictions for battery on a peace officer should not have been considered crimes of violence for purposes of the sentencing guidelines, and his sentence was therefore improperly enhanced.

Denial of Access to Classified Material Did Not Violate Defendant's 6th Amendment Rights

U.S. v. Lustyik, 2016 WL 4275592 (8/15/16) (Ut.) - The court rejects the claimed violation of the Sixth Amendment rights of Mr. Lustyik, a former FBI agent, by denying his counsel access to classified materials for use at sentencing. It says he failed to explain what material he needed or show how it would have helped. Counsel, who had requested and been denied time to obtain a security clearance, was given more than a million pages of unclassified documents before sentencing and Mr. Lustyik was able to review almost 7000 pages of classified material. The government said it would not base sentencing arguments on classified material. The district court reviewed the confidential material and did not abuse its discretion in determining the material was not relevant for sentencing. Further, the Classified Information Procedures Act does not help Mr. Lustyik because it does not provide a freestanding right to classified information. The court does remand for sentence clarification because two of the eleven counts carried a 5-year maximum sentence and it was unclear from the judgment whether the district court intended the imposed 120-month sentence to apply to each of the eleven counts

Denial of Summary Judgment in Police-killing Case Stands

Pauly v. White, 817 F.3d 715 (4/11/16) (N.M.) (Published) - The 10th denies rehearing en banc in this § 1983 police-killing-of-a-civilian case on a 6-6 vote. Six voted with the majority of the panel, 814 F.3d 1060, that affirmed the denial of summary judgment on qualified immunity grounds for the officers. Those six were: Judges Phillips, Briscoe, McHugh, Bacharach, Lucero and Matheson. Judge Phillips explains the dissenters fail to credit the district court's fact findings. It is clearly established, he says, that an officer can't shoot and kill without good cause and while not endangered. A contrary ruling in this case, the judge opines, would lea to "potentially deadly ramifications for citizens in this circuit." The dissenters, Judges Tymkovich, Kelly, Hartz, Gorsuch, Holmes and Moritz, interpret the panel majority's holding as meaning that before firing "an officer must identify himself and shout a warning while pinned down, kneeling behind a rock wall." The Judge Moritz dissent says the majority decision "creates new precedent with potentially deadly ramifications for law enforcement officers in this circuit." It's not clear which judge is mimicking the other. Dissenting Judge Hartz calls on the Supreme Court to settle the hotly contested issue.

Unpublished decisions

U.S. v. Hughart, 2016 WL 1445974 (4/13/16) (Okl.) (unpub'd) - The 10th holds the officer did not detain Mr. Hughart when, while Mr. Hughart was stopped in the road, the officer activated emergency lights, requested an ID and ignored Mr. Hughart's request to pull his car into a parking lot. The 10th says: emergency lights were a safety precaution, not an attempt to detain; requesting an ID doesn't turn a consensual encounter into a seizure; and the officer was trying to figure out what was going on when Mr. Hughart requested to move his car. A patdown was okay, the 10th concludes, because the officer had a reasonable belief Mr. Hughart was armed and dangerous, given his touching of his right side near his waistband [furtive movements!!!], the fact that Mr. Hughart was arguing with his crying wife and the officer's experience with domestic disputes.

U.S. v. Saucedo-Avalos, 2016 WL 1444727 (4/13/16) (Kan.) (unpub'd) - The 10th rules it wouldn't render a plea invalid even if Mr. Saucedo-Avalos' lawyer had falsely assured him he would receive no more than a ten-year sentence. The judge's statements at the plea hearing that Mr. Saucedo-Avalos could receive a sentence from ten years to life trumped the lawyer and prevented the plea from being involuntary. Mr. Saucedo-Avalos received 30 years in prison.

Williams v. Wilkinson, 2016 WL 1459529 (4/14/16) (Okl.) (unpub'd) - The 10th reverses a dismissal of a Muslim prisoner's § 1983 and Religious Land Use and Institutionalized Person Act ("RLUIPA") suit. The 10th rules Mr. Williams could be deprived of his RLUIPA and First Amendment rights by the prison's refusal to give him kosher food, even if the prison thinks Muslims are required by their religion to eat halal food, not kosher food.

Thornton v.Goodrich, 2016 WL 1445397 (4/13/16) (Col.) (unpub'd) - Procedural victory for a § 2254 petitioner. The 10th remands where the district court rejected Mr. Thornton's Fourth Amendment claim under Stone v. Powell, 428 U.S. 465 (1976), on the grounds that the state courts had provided a full and fair opportunity to litigate the claim. The 10th holds the district court should have actually examined the state court record before deciding Mr. Thomas was afforded a full and fair opportunity.

Winkel v. Heimgartner, 2016 WL 1534062 (4/15/16) (Kan.) (unpub'd) - Yet another victory for a § 2254 petitioner. The 10th finds the district court erred in the following ways: in determining whether Mr. Winkel timely filed a pro se petition for review with the Kansas Supreme Court, the district court considered the federal prisoner mailbox rule instead of the appropriate state prisoner mailbox rule; the district court did not properly place the burden on the state to prove the state supreme court consistently applies the prisoner mailbox rule in the same manner as it did in Mr. Winkel's case; and the district court improperly required Mr. Winkel to prove his satisfaction of the prisoner mailbox rule by submitting prison mail logs or other additional evidence, instead of by submitting his and a prison official's affidavits.

Failure to file a reply brief dooms residual-clause argument

U.S. v. Peterman, 2016 WL 1273033 (4/1/16) (okl/) (unpub'd) - Mr. Peterman contended he was ineligible for the ACCA because, to qualify as a violent felony, one of his convictions depended on the unconstitutionally vague residual clause. The government agreed the district court relied on the residual clause to impose the ACCA sentence. However, in its answer brief the government pointed out Mr. Peterman did not argue he was entitled to relief under the plain-error standard in his opening brief. Mr. Peterman did not file a reply brief. Since Mr. Peterman never claimed plain error, he waived any chance for relief, says the 10th. So it affirms a concededly unconstitutional sentence. Hopefully Mr. Peterman files a § 2255 alleging ineffectiive-assistance of appellate counsel and gets relief that way.

"Off-the-cuff" decision fails to satisfy Daubert gate-keeping requirements

Adamscheck v. American Family Mutual Insurance Company, 818 F.3d 576 (3/29/16) (Col.) (Published) - Although a civil case, the expert holding might be useful for challenging the exclusion of a defense expert. The 10th holds the district court failed to engage in its required Daubert gatekeeping function when it made an "off-the-cuff decision based solely on an equivocal one-sentence description of the biochemical engineering expert's testimony by the party opposing its admission." Counsel opposing the admission described the testimony as opining the plaintiff couldn't have been hurt in the type of accident that occurred. The district court made no fact findings and only stated that all-rear-end accidents are different.

Tenth Circuit rejects Moncrieffe-based argument, holds 21 U.S.C. § 841(a)(1) is a “drug trafficking offense”

U.S. v. Dominguez-Rodriguez, 817 F.3d 1190 (3/31/16) (N.M.) (Published) - The 10th turns down an ingenious attack on USSG § 2L1.2 enhancements. The 10th holds a violation of 21 U.S.C. § 841(a)(1) is a “drug trafficking offense” under USSG § 2L1.2(b)(1)(A). The possession with intent to distribute does not have to include an element of commercial dealing and remuneration, the 10th concludes. The 10th justifies the difference from the result in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), which did acknowledge a commercial dealing/remuneration element requirement in the immigration law context, on the grounds that § 2L1.2 had its own distinct definition of “drug trafficking offense.” That definition in application note 1 includes possession with intent to distribute a controlled substance. The 10th looks to the generic contemporary meaning of possession with intent to distribute. The 10th finds that meaning in § 841(a)(1). That provision criminalizes non-commercial, non-remunerative distribution. End of story. The 10th notes the anomaly that under its ruling a state drug offense might qualify for a 16-level enhancement, but under Moncrieffe, not for an aggravated-felony 8-level enhancement. But that anomaly was not before the 10th in this case, the 10th says, so it doesn't have to justify it now.

Convicton for violationg SORNA overturned; reversing 10th Circuit

Nichols v. U.S., 136 S. Ct. 1113 (4/4/16) - The Court overturns the 10th Circuit and holds that the federal Sex Offender Registration and Notification Act (SORNA) did not require updating an address with the state a sex offender is leaving when the offender is going to a foreign country where he is not required to register. The Court relies on the use of the present tense, which indicates a person's update requirement corresponds with where that person currently resides, not where he used to reside. The Court also relies on the requirement to update "after" leaving the state, making it hard to update in the state one just left. Plus in the prior sex-offender registration legislation, the Jacob Wetterling Act, Congress specifically required de-registering in the departure jurisdiction. Congress knew how to make such a requirement, but didn't in this case. Finally, the Court feels its interpretation will not create "loopholes and deficiencies," since Congress amended SORNA to make what Mr. Nichols did a violation of SORNA from now on. And, besides, he did violate Kansas law.

Luevano v. Clinton, 2016 WL 1392519 (4/8/16) (Col.) (unpub'd) - The 10th Circuit lets stand the dismissal of a lawsuit seeking an order requiring Hillary Clinton to take a polygraph test.

Group Can Distribute Literature About Jury Nullification On Courthouse Steps

Verlo v. Martinez, 820 F.3d 1113 (4/8/16) (Col.) (Published) - A victory, perhaps temporary, for jury nullification & the First Amendment. The 10th upholds a preliminary injunction against a state district court prohibiting a jury nullification group from passing out literature to, and talking with, folks entering the courthouse. The group stressed it was important in order to get their message across that they be close to the courthouse's front door "to discuss quietly the concept of jury nullification." The defendants hadn't shown the group had caused any problematic obstructions.

Repeated Tasering Was Excessive Force

Perea v. Baca, 817 F.3d 1198 (4/4/16) (N.M.) (Published) - The 10th upholds the district court's refusal to dismiss a § 1983 lawsuit, holding Albuquerque police officers' repeated tasering and resultant killing of Mr. Perea in 2011 after he was subdued constituted excessive force. Officers stopped Mr. Perea for pedaling his bicycle through a stop sign without stopping. They chased him and then pushed him off his bike without explaining why they were chasing him. They struggled with Mr. Perea while he thrashed about with a crucifix in his hand. Judge Brack determined Mr. Perea's holding of the crucifix did not mean he was "armed." [Good news for Christians]. The officers tasered Mr. Perea 10 times within two minutes. It is clearly not reasonable to repeatedly use a taser against a subdued arrestee officers know to be mentally ill, whose crime is minor and who poses no threat to the officers, the 10th concludes.

Report on Forensic Science in the Criminal Courts Released

According to a press release from the White House, the President's Council of Advisors on Science and Technology (PCAST) has released its report "Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods." Relevant links are listed below.

Blog post (available at 6am): https://www.whitehouse.gov/administration/eop/ostp/blog

Full report: https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf

Additional materials can be found at: https://www.whitehouse.gov/administration/eop/ostp/pcast/docsreports

According to the release, the recommendations—which are directed at the National Institutes of Standards and Technology (NIST), the White House Office of Science and Technology Policy (OSTP), the Federal Bureau of Investigation (FBI) Laboratory, the Attorney General, and the judiciary—include:

NIST should perform evaluations, on an ongoing basis, of the scientific validity of current and newly developed forensic feature-matching technologies and should issue an annual public report on the results.

NIST should take a leadership role in transforming three important feature-comparison methods—DNA analysis of complex mixtures, latent-fingerprint analysis, and firearms analysis—from currently subjective methods, with their heavy reliance on human judgement, into objective methods, in which standardized, quantifiable processes require little or no judgment.

OSTP should coordinate the creation of a national forensic science research and development strategy.

The FBI Laboratory should undertake a vigorous research program to improve forensic science, building on its recent important work on latent-fingerprint analysis.

The Attorney General should direct attorneys appearing on behalf of the Department of Justice (DOJ) to ensure expert testimony in court about forensic feature-comparison methods meets the standards of scientific validity.

The Attorney General should revise and reissue for public comment the DOJ proposed “Uniform Language for Testimony and Reports” and supporting documents to bring them into alignment with standards for scientific validity.

When deciding the admissibility of expert testimony, Federal judges should take into account the appropriate scientific criteria for assessing scientific validity.

US v. Black, 2016 WL 3996994 (10th Cir. 7/25/2016). Mr. Black was convicted of conspiracy to distribute cocaine, use of a telephone during the conspiracy, and possessing with intent to distribute cocaine, after a jury trial in April 2012. The case began in 2007, and between the time the charges were first brought and the trial, the government filed four superseding indictments, and twice dismissed the case --- once to pursue an interlocutory appeal and once to avoid dismissal of the cocaine conspiracy charge. Mr. Black asserted that his Sixth Amendment right to a speedy trial was violated on appeal. The Tenth Circuit rejects the claim. It exhaustively parses the record and ultimately decides that the length of the delay weighs against the government, the reason for the delay does not weigh against the government, the assertion of the right factor weighs heavily against Black (because he was late and not real vigorous in asserting the right), and there was no prejudice to him, so he did not show a Sixth Amendment violation.
However, he wins resentencing. He contended that the district court erroneously calculated the advisory GL range as 360 to life and, accordingly, an offense level of 37 under USSG 4B1.1(b)(1). This was plain error. Because Mr. Black was charged under 21 USC 841(a)(1) and 846, his offense was punishable by a maximum of 30 years, so the correct total offense level should have been 34, resulting in an advisory range of 262-327 months.


A.M. v. Holmes, 2016 WL 3999756 (10th Cir. 7/25/16). The Tenth Circuit affirms the trial court's grant of qualified immunity and dismissal of lawsuits brought against a middle school principal, assistant principal and school cop. The officer contended he had probable cause to arrest the student (F.M.) for interfering with the educational process in violation of NMSA 1978, 30-20-13(D) where the student's fake burping, laughter, etc. prevented the teacher from controlling her class and the officer's observation that, when he responded to the call, there was no more teaching going on because the teacher was monitoring the A.M. in the hallway. The Tenth decides it need not decide this question because, it concludes, an officer could have reasonably believed that he had probable cause to arrest and the district court correctly determined that the officer was entitled to qualified immunity. In footnote 15, the Court states it is "neither oblivious or unsympathetic to 'the potential future consequences'" to a child of an arrest or other law enforcement sanction for seemingly non-egregious classroom misconduct, but "[i]t is ultimately not our place to question or undermine the New Mexico legislature's policy choice to criminalize interference with the educational process and, more specifically, to (at least arguably) proscribe the kind of classroom misconduct that led to F.M.'s arrest." The Court also affirmed the grant of summary judgment in relation to the officer's handcuffing of F.M. because the clearly established law at the time of the arrest would not have apprised a similarly situated reasonable officer that handcuffing the student was excessive force. At a later incident, F.M. was searched, which was the basis for the claims against the assistant principal and principal. Summary judgment on qualified immunity grounds was properly granted because the search was justified at its inception by another student anonymously reporting seeing F.M. participate in an alleged drug transaction on school grounds and her subsequent viewing of security camera footage at the time and location provided by the reporting student. The film showed F.M. standing in a closed circle of students, apparently holding a roll of money and passing something to other students. She then called the students in the video to her office. Two of the four said they had seen someone with marijuana at school that day; another said F.M. was carrying cash; three said the circle incident involved marijuana. The Court was satisfied that this information provided reasonable grounds for a search. The scope of the search -- of F.M.'s backpack and the removal and search of his outer layers of clothing (but not his underwear, athletic shorts and one shirt) -- was not unreasonable. Finally, the district court properly granted summary judgment to the assistant principal on the claims that the search was in retaliation for comments made to the media by F.M.'s mother, A.M., regarding the prior incident and on the equal protection claim (that F.M. was more intrusively searched). A.M. didn't produce enough evidence to support those claims.

U.S. v. Mendoza, 817 F.3d 695 (3/25/16) (Okl.) (Published) - Affirmance of denial of traffic-stop motion to suppress regarding reasonable suspicion and scope of consent. The 10th finds what seems to be very thin reasonable suspicion to continue the traffic stop where: Mr. Mendoza went a half mile before pulling over after the officer signaled him to stop; he showed signs of extreme nervousness [shaking, handing over different documents than the ones requested and remaining nervous even after the officer told him he was just getting a warning]; his travel plans “made no sense” [driving intensely [as evidenced by food and trash on the passenger seat] for a two-week vacation when the rental car was due back in 5 days] he said he was a construction worker, but the officer thought his hands were not those of someone doing construction. The officer did not exceed the scope of Mr. Mendoza’s consent to search his car, the 10th rules, where the officer dumped out onto the road fish that was in an ice chest and pried open the inner and outer liners of an ice chest farther apart, causing indents in the foam. Minor or de minimis damage does not by itself render a search excessive, the 10th insists. And Mr. Mendoza, who had a clear view of the search, did not honk the horn on the officer’s car where he was sitting, as he was told he could do if he wanted the search to end. Don't worry about the fish, the 10th consoles us. The fish would be okay because they were wrapped and would not be spoiled from being on the road for a short time. Once the officer found drugs in the ice chest, he had probable cause to search the second ice chest, including its lining, and damage the chest in the process. It was reasonable for the officer to dismantle that chest because there was no nondestructive way to open the lining of that chest.

U.S. v. Vaughan, 2016 WL 1128035 (3/23/16) (Kan.) (unpub'd) - In this § 2255 case, Mr. Vaughan ultimately loses his constitutional speedy-trial claim, but the 10th does say something helpful regarding the reason-for-delay, Barker v. Wingo factor. The government justified its 22-month delay in telling Mr. Vaughan about his Kansas indictment on the grounds that it was busy prosecuting Mr. Vaughan in Nevada during the delay. The 10th holds the factor weighed against the government because the government didn't explain why the delay was necessary in this particular case. But the 10th is not impressed by Mr. Vaughan's prejudice claim. He said he was working at the time of the Kansas bank robbery, but during the delay his brother's business that he worked for dissolved, its records disappeared and the alibi co-worker witnesses dispersed to who knows where. The 10th faults Mr. Vaughan for not: identifying the alibi witnesses by name, except for his brother; explaining what efforts he took to find those witnesses; saying why his brother couldn't have testified; and stating how the records were lost during the delay . Without prejudice the speedy trial claim was a lost cause.

Webb v. Scott, 2016 WL 1105254 (3/22/16) (Ut.) (unpub'd) - The 10th holds Mr. Webb's § 1983 allegations establish Fourth Amendment liability for an illegal arrest. The 10th first finds the traffic stop was okay because the officer could have reasonably believed Mr. Webb's license plate light was not functioning, even if it actually was. But Mr. Webb alleged the license plate light was actually functioning. If that were the case, the officer should have discovered that and not arrested him. Plus, the Utah S. Ct. has held an arresting officer is responsible for ensuring an arrestee is taken before a magistrate without delay. So the five-day delay, which is beyond the 48 hours that's constitutionally okay, was attributable to the arresting officer. So he may be held liable for the delay.

Webb v. Thompson, 2016 WL 1105417 (3/22/16) (Ut.) (unpub'd) - The 10th affirms a district court's refusal to grant summary judgment in a prisoner § 1983 suit. It is a clear constitutional violation to strip search minor-offense detainees without reasonable suspicion. Here the same Mr. Webb as in Webb v. Scott above was arrested for the offense of driving with a defective license plate light. Officers strip searched him without reasonable suspicion. So no qualified immunity. In addition, the officers clearly violated the Fourth Amendment by detaining Mr. Webb for five days without a judge's probable-cause determination. The probable-cause affidavit was filed in a receptacle in the jail's booking area, but the magistrate judge who came by every other day didn't review the affidavit until 5 days after the arrest. There was no process to ensure a prisoner was released if a judge failed to timely review an affidavit. For that reason the sheriff could be liable as well. Judge Gorsuch dissents because he does not think the jailers had an affirmative duty to ensure Mr. Webb timely went before a magistrate. The majority thinks they have to defer to the district court's conclusion that there is a genuine factual dispute whether the jailers caused or helped cause the delay.

Colorado Outfitters Association v. Hickenlooper, 2016 WL 1105363 (3/22/16) (Col.) (Published) - On standing grounds, the 10th rejects a challenge to Colorado's requirement of background checks for private firearm transfers that exceed 72 hours and its general prohibition against the possession, sale or transfer of large-capacity magazines. The plaintiffs failed to establish a credible threat of prosecution. Testifying that the requirements placed burdens on them only showed it was hard to comply, not that they would violate the law and then be prosecuted. A plaintiff's refusal to answer certain questions on Fifth Amendment grounds did not help establish standing. Such refusal cannot prove there's a credible threat of prosecution. Speculation that some day plaintiffs would violate the law doesn't cut it either.

2255 Petitioner's Case Remanded for Consideration of the Merits of Petitioner's Claim that his Trial Counsel was Ineffective

U.S. v. Brown, 2016 WL 475207 (2/8/16) (Wyo.) (unpub'd) - Another habeas petitioner procedural victory, this time for a § 2255 movant. The facts indicate Mr. Brown got screwed. At a proffer meeting with state officials he gave information about his criminal activities to receive consideration in his state plea negotiations. He ended up pleading no contest to state charges. A state agent relayed Mr. Brown's statements to federal authorities. A week after the state plea, a federal grand jury charged him with 3 firearms counts. He was convicted at trial. The 10th affirmed, holding the admission of his statements was not plain error because he'd been warned he could not be immunized from federal charges. Mr. Brown alleged in a § 2255 motion that he received ineffective assistance of counsel in federal court due to the statements' inadmissibility under Federal Rule of Evidence 410, and at the state proffer meeting. The district court rejected the claims on invalid grounds which the government proffered before it and then abandoned on appeal. The 10th rules the district court was wrong to say Rule 410 didn't apply due to Mr. Brown's subsequent plea because Mr. Brown entered a no-contest plea, which Rule 410 applies to. The district court was also wrong to say the claim Mr. Brown raised had already been resolved on direct appeal because the 10th only addressed the admissibility issue, not the ineffective assistance issue. And the district court erroneously failed to address the complaint against state counsel, just as the government had failed to do.

The 10th decides not to affirm anyway based on the merits. The 10th reasons that: Mr. Brown did not have the chance to address in district court the new arguments the government made on appeal; and the government raised factual issues about trial strategy without anyone having a chance to develop the factual record. The 10th remands for the district court's consideration of the merits. The 10th suggests the lower court consider appointing counsel, allowing for supplemental briefs and holding an evidentiary hearing.

No Qualified Immunity for Officers Who Shot Man In His Home

Pauly v. White, 2016 WL 502830 (2/9/16) (N.M.) (Published) - A divided 10th affirms denial of qualified immunity to officers involved in the killing of a man in his home in rural New Mexico. Late one night a woman called 911 saying a man, who turned out to be Daniel Pauly, was driving "all crazy." Accompanied by another woman, she followed Daniel until he stopped and asked them why they were following him. There was a verbal confrontation. Daniel left and drove a short way to his home that he shared with his soon-to-be-deceased brother, Samuel, in a rural wooded area. Officers met up with the women. The women went on their way. Daniel was no longer a threat to the women. A number of officers went to the Pauly home. They didn't think they had probable cause to arrest Daniel or that exigent circumstances existed. But they wanted to talk to Daniel to get his side of the story [i.e., see if he would say something incriminatory] and see if he was intoxicated. The officers entered the property without using any flashing lights to indicate they were police. According to Daniel, they never announced they were police until after everything was over. The brothers saw people with flashlights approaching. The brothers asked who they were. The officers laughed and said: "We got you surrounded. Come out or we're coming in." Believing they were about to be invaded, the brothers armed themselves with guns. One brother hollered: "We have guns." A few seconds later, Daniel stepped partly out of the back door and fired two warning shots while screaming loudly to try to scare the invaders off. A few seconds later, officers saw Samuel open the front window and point a handgun in an officer's direction. That officer shot and killed Samuel from his covered position 50 feet away. All this took place in less than five minutes.

The 10th holds that the conduct of the two officers who first arrived at the home was a but-for cause of Samuel's death and Samuel's pointing the gun was not an intervening act that superseded the officers' liability. The 10th notes the brothers had the constitutional right to use arms to protect their home. Plus under New Mexico law they had the right to use lethal force against an intruder when such force was necessary to prevent the commission of a felony in their home. Actual entry into the home is not necessary for that right to arise. Since it was objectively reasonable for the officers to determine the brothers might believe the officers were intruders [given the earlier road rage incident; officers' threats to enter the home, the darkness and the failure of the officers to identify themselves as officers], a jury could find it was foreseeable the brothers would arm themselves in defense of their home, as New Mexico law allowed. It was clearly established that what the officers were alleged to have done violated the Fourth Amendment, the 10th rules.

The 10th also holds the shooting officer, who arrived later than the first two officers and did not know about the other two officers' frightening conduct, could be liable for the use of excessive force. The factors in favor of that ruling include: the crime of which Daniel was suspected, reckless driving or DWI, was a minor crime; before Samuel pointed his gun, the shooting officer was protected behind a stone wall 50 feet away and another officer was protected behind a pickup truck, Samuel couldn't aim very well because he could not see out of a lighted house into the dark, although the shooting officer thought Daniel's warning shots hit an officer, he did not hear anything that would suggest the shots hit anyone [in sum, Samuel was not an immediate threat to the officers' safety]; there were no exigent circumstances and no probable cause to arrest, so the brothers were not attempting to evade arrest by flight; the shooting officer did not order the brothers to drop their weapons, even though he might have had time to do so; and it was possible Samuel never fired his weapon, making his intentions unclear. The 10th stresses courts should ensure officers don't take advantage of the fact that a potential contradicting witness--the victim---is unable to testify. The shooting officer was under fair notice his conduct would violate the Constitution. No qualified immunity.

Judge Moritz dissents. She points out the two officers who obviously engaged in egregious conduct could not be held liable unless the shooting officer could be held liable. She thinks the majority impermissibly second-guesses the shooting officer's split-second decision to use deadly force in self-defense.

Pattern Tenth Circuit Jury Instructions on Constructive Possession, Deliberate Ignorance Erroneously Given

United States v. Little, 2016 WL 3902581 (10th Cir. 2016): In this felon-in-possession case, the panel overrules a line of case beginning with US v. Colonna, 360 F.3d 1169 (10th Cir. 2004), and finds that the Tenth Circuit's pattern jury instruction on constructive possession is erroneous. The district court gave the unmodified Tenth Circuit jury instruction on constructive possession, which provides that constructive possession exists when a person not in actual possession "knowingly has the power at a given time to exercise dominion or control over an object." Little contended that the jury should have been instructed that constructive possession exists when a person knowingly has the power and the intention to exercise dominion or control. The panel acknowledged that the Colonna line of cases could not be overruled absent intervening Supreme Court or en banc authority to contrary; it found that authority in the SCOTUS decision Henderson v. US, 135 S.Ct. 1780 (2015), in which the Court observed that "[c]onstructive possession is established when a person, though lacking physical custody, still has the power and intent to exercise control over the object." Based on Henderson, the panel found that Colonna should be overruled on that point of law and held, in accordance with Supreme Court precedent and most other circuits, "that constructive possession exists when a person not in actual possession knowingly has the power and intent at a given time to exercise dominion or control over an object."

Two members of the panel then concluded that the jury instruction was not reversible error. It rejected the government's argument that the fact another instruction defined the word "knowingly" as "voluntarily and intentionally" rendered the error harmless because "[i]ntentionally having the power to exercise dominion is not the same as intending to exercise dominion." However, given the particular facts of this case, the majority felt a reasonable jury would have been compelled to conclude that Little knew about the weapons. One member of the panel dissented on this point, and his dissent is well worth reading for a discussion of why error should not be considered harmless.

The panel also concluded that the deliberate ignorance instruction was improperly given, reiterating the proposition that "[a]llowing a deliberate ignorance instruction premised on evidence of constructive knowledge reduces the standard for conviction from knowledge to recklessness or negligence." However, as with the constructive possession instruction, the panel concluded that the error was harmless.

The court found no error in the giving of the aiding and abetting and the possible guilt of others instructions.

Although Mr. Little will not receive a third trial (as the first resulted in a hung jury), he will be resentenced. His advisory guideline range had been enhanced under USSG 2K2.1 in part because he had prior New Mexico convictions for battery on a peace officer, which the district court determined were crimes of violence. It was not clear whether the district court relied on the use of force definition or the residual clause contained in the career offender guideline, which is the relevant definition of "crime of violence" for purposes of 2K2.1. The government conceded on appeal that, following Johnson v. US, 135 S.Ct. 2551 (2015), and US v. Madrid, 805 F.3d 1204 (10th Cir. 2015), reliance on the residual clause of the career offender guideline was error. Accordingly, the panel remanded for resentencing.

A Rare Habeas Equitable Tolling Victory

Loftis v. Chrisman, 812 F.3d 1268 (2/10/16) (Okl.) (Published) - Through no fault of his own, Mr. Loftis did not receive timely notice of the state district court denial of his habeas petition. He got notice of the denial 17 days after it was issued. The notice of appeal was due 10 days after the denial. Mr. Loftis promptly filed a motion to restart the 10-day period. More than two months later, the district court granted the motion. Mr. Loftis filed his notice of appeal within the time the district court granted. He then filed a petition in error and brief within 30 days of the district court's extension order. One year later, the Oklahoma Criminal Court of Appeals ("OCCA") denied the appeal as untimely. It interpreted the district court's extension grant as a denial of a recommendation for an out-of-time appeal. It then ruled that Mr. Loftis should have just filed his petition in error and brief within 30 days of the order denying his habeas petition and paid no attention to the rule that says a petitioner "must" file a notice of appeal within 10 days. Only the 30-day, petition-in-error rule was mandatory, the OCCA said. Mr. Loftis violated that rule by filing the petition in error more than two months after its due date. Mr. Loftis was not entitled to an appeal out of time because it was his fault he didn't know he should have ignored the notice-of-appeal deadline. Then the federal district court ruled Mr. Loftis's § 2254 petition was untimely because none of the time he spent in state court tolled the one-year statute of limitations because his appeal was untimely. The federal district court refused to apply equitable tolling because a pro se prisoner's ignorance of the law is not an extraordinary circumstance.

The 10th steps in to save the day. First, though, it does rule Mr. Loftis did file beyond the time limits. Untimely state habeas pleadings don't statutorily toll the deadline. But, in reliance on Burger v. Scott, 317 F.3d 1217, 1220 (10th Cir. 2003), the 10th finds Mr. Loftis met the diligence & extraordinary circumstances criteria for equitable tolling. Mr. Loftis diligently pursued his claims by filling documents he believed would be sufficient to ensure state court review. The extension grant reasonably led Mr. Loftis to believe he had done all he needed to do by filing the notice of appeal and then the petition in error. The 10th observes that an incarcerated pro se litigant should not be expected to know more than the state district court, which thought it had the power to grant him an extension. It was not obvious that Mr. Loftis was supposed to ignore the mandatory-sounding rule that he "must" file a timely notice of appeal before filing a petition in error. Indeed, the 10th expresses doubt the OCCA would have actually decided Mr. Loftis's appeal on the merits if he had followed the procedure the OCCA said he was supposed to follow. So, Mr. Loftis was not untimely due to ignorance of the law, as the federal district court said, but because the procedural rules provided no clear guidance for the unusual circumstances Mr. Loftis found himself in through no fault of his own, and the state district court caused Mr. Loftis to believe his efforts had been sufficient to ensure an appeal. In short, the untimeliness arose from "unique procedural impediments caused by the state's way of handling pro se prisoner's filings," including, the 10th notes, the short filing deadlines and the starting of the clock when the denial order is issued instead of when the prisoner receives the order. These were extraordinary circumstances. Mr. Loftis should not have been expected to file a protective federal petition, the 10th says. He had no reason to believe he was facing a statute of limitations problem until the OCCA made its decision when the statute of limitations had already passed. The 10th is not concerned that it took Mr. Loftis two months to file his federal habeas petition after the OCCA's decision. For an incarcerated pro se litigant, that was not such a long time as to constitute lack of diligence. The case goes back for the federal district court to decide the merits [without the AEDPA relief-preclusion provisions to worry about].

McCormick v. Parker, 2016WL1743388 (May 3, 2016) (OK): The panel grants McCormick’s habeas petition on Brady grounds. It found that a SANE nurse was a member of the prosecution team and she testified falsely at trial that she was a certified SANE nurse at the time of trial. The panel imputed her knowledge of her own lack of credentials to the prosecutor, who was obligated to disclose this impeachment evidence to the defense. The duty to disclose this information arises even if the prosecutor does not have actual knowledge of the evidence at issue. The panel was quick to note that it was not finding that every “medical professional treating survivors of sexual abuse are automatically members of the prosecution team for Brady purposes.” Here, the panel ruled the SANE nurse was part of the prosecution team because she acted at the request of law enforcement in the pre-arrest investigation of the crime.
Interestingly, in discussing why the nurse’s misrepresentation was material, the court pointed out that during voir dire, two venire members who ended up on the jury, said that they would need a SANE nurse’s corroborating testimony to convict McCormick of child sexual abuse. From that the court concluded that the nurse’s credibility was essential to the state’s case, especially when she was the only one who provided ‘forensic’ corroboration of the complaining witness’s testimony.

United States v. Von Behren, 2016WL2641270 (May 10, 2016) (CO): The panel finds that a person on supervised release does not have to answer questions when the answers risk incriminating him. Therefore, a polygraph condition that compelled Von Behren to answer specific questions about prior sexual behavior violated his Fifth Amendment privilege against self-incrimination.
Right before he was released from prison, Von Behren’s supervised release conditions were modified. He was required to participate in and successfully complete a sex offender treatment program. The program to which he was sent demanded a polygraph and that he answer the following four questions: (1) After the age of 18, did you engage in sexual activity with anyone under the age of 15? (2) Have you had sexual contact with a family member or relative? (3) Have you ever physically forced or threatened anyone to engage in sexual contact with you? (4) Have you ever had sexual contact with someone who was physically asleep or unconscious? If he answered yes to any one of the questions that would trigger a mandatory follow-up question, “how many” times? Among these four questions, Mr. Von Behren could refuse to answer one. If he didn’t comply he would be discharged from the program. Von Behren balked and filed a motion to block the exam. The government threatened to ask that he be remanded to prison if he did not receive sex-offender specific treatment.
To qualify for the Fifth Amendment privilege, the panel wrote, a communication must be testimonial, incriminating and compelled. It quickly found that answering questions during a polygraph is a “communicative act which is testimonial.” The rest of the opinion it spent discussing whether Von Behren’s answers would be incriminating and compelled.
The panel held that those answers would be incriminating because they would provide a lead or link in the chain of evidence needed to prosecute Von Behren. The panel also said that under FREs 413 & 414, an affirmative answer could potentially be used against him if he were ever charged with a sex crime. It concluded Von Behren would face “at least some authentic danger of self-incrimination by answering” any of these questions. It added that once a court determines that the answers requested would tend to incriminate the person, it should not attempt to speculate whether the person will in fact be prosecuted. Regarding compulsion, the panel ruled that the government’s threat to ask that Von Behren be remanded to prison if he didn’t complete the program constituted unconstitutional compulsion within the meaning of the Fifth Amendment.
Some other points: Von Behren filed this appeal after the district court refused to block the polygraph. The panel noted it has jurisdiction to review rulings on the post-judgment modification of supervised release and here, the issue was ripe for judicial review. It also noted that its opinion does not protect someone refusing to answer a question relevant only to his supervised release status, such as whether he had looked at pornographic material. Similarly, its opinion does not help someone who has been given immunity or whose answer does not risk incriminating him.

Rangel-Perez v. Lynch, 816 F.3d 591 (3/1/16) (Published) - In conflict with a couple of other circuits, the 10th holds that the "aggravated felony" of "sexual abuse of a minor" requires the mens rea of at least "knowingly." The 10th rejects reliance on the definition of "sexual abuse" in 18 U.S.C. § 3509(a)(8) and instead relies on the mens rea in the substantive sexual abuse provisions like § 2241(c) and § 2243. It stresses that there are serious immigration consequences to labeling an alien an aggravated felon. It doesn't mention the § 2L1.2 offense level bump, but we know that's an important consequence too. There's also a bit of good stuff about the categorical approach, that is, as we know, what counts is the least serious of the acts that could constitute the violation of a particular statute. In this case Mr. Rangel-Perez was found guilty of violating a Utah statute that makes it a misdemeanor to engage in a sexual act with a 14 or 15 year-old where the offender is more than 4 years older. [This was the result of Mr. Rangel-Perez having sex with his long-time girlfriend who became the mother of his child, the 10th points out]. The 10th finds that offense to be a strict liability offense under Utah law as to more than just the age of the victim. It therefore is not "sexual abuse of a minor" and so not an aggravated felony.

U.S. v. Singer, 2016 WL 3244869 (6/13/16) (NM) - appeal of sentence for drunk driving involuntary manslaughter offense that took place in Church Rock. The victim was a pedestrian who was decapitated and dismembered by the impact. The victim's wife saw all of this; she had crossed the road in front of her husband. Mr. Singer got a 75-month sentence that he challenged on procedural and substantive grounds. The Tenth affirms. It decides that an offense level enhancement under U.S.S.G. § 3C1.2 properly relied on facts other than the manslaughter itself and the reckless operation of a vehicle that was part of it. The additional facts included Mr. Singer's high speed flight from the scene of the crime, which created a risk of injury or death to other persons. An upward departure under § 5K2.14 was also appropriate based on Mr. Singer's elevated blood alcohol level, flight from and danger to law enforcement officers, and the extreme degree of risk to members of the public before and after the manslaughter took place. The sentence, about 18 months above the top of the guidelines range, was also substantively reasonable. It was based on the brutality of the victim's death in his wife's presence, Mr. Singer's arrest for DWI and resulting loss of his license about six months earlier, and his assault of law enforcement officers after being arrested in this case.

US v. Bennett, Nos. 14-1384 and 14-1402 (Colo), 5/26/16, published - Defendant pled guilty to possession of child porn and was sentenced to 57 months in prison, with a supervised release condition that included penile plethysmograph testing, if recommended after an evaluation. Both parties appealed. The government claimed that a prior Colorado misdemeanor conviction for sexual exploitation of a child “related to” child pornography, which raised the sentencing floor to a mandatory minimum ten year term. Defendant claimed that he should not have to submit to plethysmograph testing.
Held - the ten year mandatory minimum applied because Congress intended a broad reading of “related to” and the statute under which defendant was convicted in the misdemeanor case, which covered possession of “sexually exploitative material,” which is defined to include more than the federal definition of child pornography, still qualified.
Hartz dissented from that holding that the defendant’s appeal was dismissed without prejudice on prudential grounds because the testing issue, which won’t arise for another ten years, posed too many speculative factual issues, and so was not ripe for review.

Holland v. Allbaugh, 2016 WL 3145595 (6/6/16) (Okla.) - Because it finds the district court did not afford proper AEDPA deference and that the Oklahoma court's application of Supreme Court law was not unreasonable, the Tenth reverses the grant of habeas relief: At issue was whether the defendant's due process right to a fundamentally fair trial was violated by admission of the co-defendant's confession and statement that "we don't associate with black guys" and victim testimony regarding the defendant's Nazi tattoos. The district court erred by relying on general legal principles that the Supreme Court developed in a different factual context. State courts have leeway to make case-by-case determinations that apply broad rules. Nor was counsel ineffective in failing to object to admission of this evidence. The Tenth applies its "doubly deferential" review of the state court's denial of an ineffective assistance claim. Not only must there be proof that counsel's actions were unreasonable; there must be no reasonable argument that counsel's performance satisfied Strickland's deferential standard. Here, the disputed evidence was relevant, there was substantial evidence supporting conviction, and no reasonable probability that the trial outcome would have been different if the disputed evidence had been excluded.