Tuesday, November 22, 2016

New Appellate Rules of Procedure

The 2017 Federal Rules of Appellate Procedure will take affect on December 1, 2016, and new Tenth Circuit Local Rules will be effective on January 1, 2017. All the updated rules are available at http://www.ca10.uscourts.gov/clerk/rules. Notable changes to the federal rules include a reduction in the word count for primary briefs (from 14,000 to 13,000 words) and reply briefs (from 7,000 to 6,500 words). FRAP 26(c) allows for the addition of three days to all deadlines if service is accomplished by certain methods. Pleadings delivered electronically had been under this rule. However, Rule 26(c) has been amended so that papers delivered electronically are treated as delivered on the date of service and the three additional days will no longer be added to any applicable deadline. 10th Cir. Rule 46.4(B)(1) has been amended to make clear counsel’s obligations when filing a no-merits brief in a criminal case involving a non-English-speaking defendant. A memo setting out all the changes to the rules is available at the Tenth Circuit’s website.

New Mexico Aggravated Assault With a Deadly Weapon is Categorically a Crime of Violence; Sixth Circuit's Contrary Decision Rejected

U.S. v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016): New Mexico aggravated assault with a deadly weapon is categorically a crime of violence under the former version of U.S.S.G. § 2L1.2. N.M.S.A. 1978, § 30-3-2 is divisible because it sets out alternative elements for aggravated assault in three subsections. The defendant was convicted under subsection (A), which prohibits “unlawfully assaulting or striking at another with a deadly weapon.” Both parties agreed that the offense is broader than generic aggravated assault, thus the issue was whether the offense had an element of the use, attempted use, or threatened use of physical force against the person of another. In this context, “physical force” means violent force that is capable of causing pain or injury. The defendant contended his offense did not categorically include an element of use of force. He pointed to N.M.S.A. 1978, § 30-3-1(C), which includes in the definition of “assault” “the use of insulting language toward another impugning his honor, delicacy or reputation,” and argued that assaulting someone by using insulting language while possessing a deadly weapon would qualify as aggravated assault but would lack any element of use of physical force. The panel rejected the argument, relying on New Mexico’s pattern jury instructions on aggravated assault. All the jury instructions require that the deadly weapon be “used.” Aggravated assault with a deadly weapon cannot be committed by insulting someone while possessing a weapon; rather, the weapon itself must be used or employed. “Employing a weapon that is capable of producing death or great bodily harm or inflicting dangerous wounds in an assault necessarily threatens the use of physical force, i.e., ‘force capable of causing physical pain or injury to another person.’” The Tenth Circuit rejected the contrary decision in U.S. v. Rede-Mendez, 680 F.3d 552, 560 (6th Cir. 2012).

Monday, November 14, 2016

Trial Manual Available for Free Download

The electronic Sixth Edition of the Trial Manual for the Defense of Criminal Cases has been made available for free download from the American Law Institute's website, a press release from the ALI announced. The manual is authored by Anthony G. Amsterdam and Randy Hertz and published by the American Law Institute Continuing Legal Education. It was originally a joint project of the American College of Trial Lawyers, National Defender Project of the National Legal Aid and Defender Association, and ALI-ABA Committee on Continuing Professional Education.

The authors say: "The primary goal of the manual has always been – and continues to be – to serve as a resource for criminal defense lawyers at the trial level. It covers the information a defense attorney has to know, and the strategic factors s/he should consider, at each of the stages of the criminal trial process. It is organized for easy access by practitioners who need ideas and information quickly in order to jump-start their work at any given stage."

A softbound print version will be made available for sale at the ALI CLE website before the end of the year. Meanwhile, the electronic version can be obtained here.

Tuesday, November 08, 2016

District Court's Revocation of Supervised Release Reversed

United States v. Henry, 2016 WL 6211808 (October 25, 2016): relying US v. Jones, 818 F.3d 1091 (10th Cir. 2016) and Fed.R.Crim.P 32.1(b)(2)(C), the panel reverses Henry’s supervised release revocation sentence because the trial court did not apply Jones’ balancing test before accepting hearsay statements as proof of one of Henry’s violations. The government does not win on harmless error grounds either because Henry asked for a variance. The panel reasoned that the court considered all the violations together (there were 3) when fashioning its sentence. The panel could not know how the hearsay proven violation affected the court’s sentencing decision. Had the court ruled differently on the hearsay proven violation, the panel suggested, it might have varied as Henry proposed. In sending the case back to the district court, the panel offered numerous suggestions on how it can avoid mistakes at the next hearing. Still, Henry illustrates the benefits of asking for a variance even in a supervised release revocation sentencing.

Court Could Consider Newly Disclosed Pretrial Conduct To Deny 3582 Sentence Reduction

United States v. Piper, 2016 WL 6211807 (October 25, 2016): Piper appealed the district court’s decision to deny his 18 U.S.C. § 3582 (c)(2) motion. In the lower court, the government agreed that his offense level had been retroactively lowered for the drug offense to which he pleaded guilty. But it opposed the reduction because of a rap video Piper made during his pretrial release. In that video he supposedly accused certain people of cooperating against him. The district court agreed that the video and Piper’s underlying offense demonstrated he was a significant danger to the community. Consequently it ruled he should not get the sentencing reduction. The panel affirmed that decision. It was unpersuaded by Piper’s four arguments. First, the panel said that the district court did not abuse its discretion by not addressing Piper’s policy arguments. Sec. 3582(c)(2) does not incorporate sec. 3553(c) which requires the court to state its reasons for the particular sentence. The court considered all the sec. 3553(a) factors and that was all it was required to do. Second, the court did not exceed its authority by considering the rap video which Piper labeled newly alleged presentencing conduct. The panel reasoned that nothing in USSG sec. 1B1.10 or Dillon require a court to disregard new allegations of presentencing conduct. Third, the court did not err in not having an evidentiary hearing before finding Piper created the video so it would be published and viewed as a threat to cooperators. To begin with, Piper did not request a hearing. According to USSG sec. 6A1.3(a), when an accused challenges certain facts the court does not have to hold a hearing unless the accused requests one. Finally, even without a hearing the court could glean Piper’s intent to threaten from watching the video. The court concluded that the video’s content and Piper’s decision to perform in a video in which he suggests a violent threat and leaving the video with a third party demonstrate the video was intended to be a threat to cooperating witnesses.

Monday, November 07, 2016

Sentencing Court Committed Plain Error By Failing to Make Relevant Conduct Findings

U.S. v. Godinez-Perez, 2016 WL 6155934 (10/24/16) (Kan.) - in sentencing Godinez for meth conspiracy, the district court erred by failing to make particularized findings regarding relevant conduct attributable to him. Even if the defendant does not lodge any objections to the PSR, the district court must still make particularized findings as to the scope of the criminal activity a particular defendant agreed to jointly undertake. The facts set out in the PSR and those admitted by Godinez in his plea were insufficient to determine whether a quantity of meth seized from a storage unit was properly attributed to Godinez. The plain error standard was met because a higher Guidelines range resulted from the district court's use of the wrong framework. There was a reasonable probability of a different outcome without the district court's error and a presumption applies that the unobjected-to error affected Godinez's substantial rights. The district court is ordered to resentence Godinez.

The Tenth rejects Godinez's argument that the meth mixture, which was over 80% pure, was improperly considered "Ice" for guideline purposes. And the district court was not required to examine the empirical grounding for the § 2D1.1 offense levels for meth offenses.

Questonable Expert Testimony Allowed

U.S. v. Chapman, No. 15-2143 & 15-2173 (10/24/16)(NM) - A troubling affirmation of the district court's admission of expert testimony in a hard-fought appeal. Husband and wife ("D.V.") accused each other of instigating an assault. The defense noted that photos of D.V. taken four hours after the altercation showed scratches on her chest that were not evident in photos taken shortly after the altercation occurred. D.V. had reported to police that Chapman had scratched her chest, but when confronted with the defense's observation, conceded that she must have caused the scratches herself. The district court permitted the government to present testimony from a SANE "expert" that domestic violence victims often injure themselves--without realizing it--as a coping mechanism. Although this "expert" had never spoken with D.V. and merely read the police report and looked at photos, she testified that what D.V. did was consistent with cases she had seen involving victims' self-injury. A condition called non-suicidal self-injury is characterized by self-infliction of injury on at least five occasions during a year. Here, however, there was no indication that D.V. had injuring themselves. Despite a dearth of supporting data, the district court permitted expert testimony that a single trauma could be so upsetting that a victim could injure herself one time only as a way to deal with trauma. The Tenth decides this was not an abuse of discretion - the testimony was sufficiently reliable, could help the jury understand the evidence, did not directly bolster D.V.'s testimony about why she scratched herself, and did not unfairly prejudice Chapman.

The Tenth rejects the government's cross-appeal sentencing argument that, despite the Assimilative Crimes Act requirement that a defendant is subject to the minimum and maximum punishments provided by state law, the district court had authority under 18 U.S.C. § 3551(a) to impose a higher sentence than state law permits. Section 3551(a) requires the sentencing court to apply the guidelines to impose a sentence within the range state law provides.