Wednesday, April 26, 2017

NextGen Information

The Clerk's Office has announced:

The 10th Circuit Court of Appeals will upgrade its CM/ECF system to the Next Generation of CM/ECF ("NextGen") in May 2017. The process will begin on Friday, May 12 at noon MDT and will be completed by Monday, May 15 at 7:00 a.m. MDT. CM/ECF will not be available during that time. Documentation will be posted on this page regarding the court's upgrade and what attorneys need to do to prepare for filing in NextGen. The PACER NextGen FAQ may be found here:

Friday, April 21, 2017

District Court Properly Denied Motion to Reconsider Suppression Order; Government's Argument Was Untimely

U.S. v. Verner, 659 Fed. Appx. 461 (10th Cir. 8/9/16) (Okl.) (unpub'd) - The government is hoisted on the same petard we often get hoisted on. The district court granted a motion to suppress evidence discovered after a de facto arrest without probable cause. After getting over the shock, the government moved for reconsideration on the ground that there was no nexus between the illegal arrest and the evidence discovery because the officers had probable cause before the arrest when they smelled marijuana in Mr. Verner's car. The government had not made the marijuana-smell argument until then. The district court denied reconsideration because the argument was untimely. The 10th rejects the notion that the district court addressed the nexus issue when it found there was a nexus based on Mr. Verner's assertion that there was one. The 10th refuses to conclude that by doing so the district court rejected every hypothetical argument against the nexus' existence. The 10th says those oh-too-familiar words: "raising a related issue below isn't sufficient to preserve an issue on appeal." The 10th finds no abuse of discretion in denying the reconsideration on timeliness grounds.

Court's failure to explain reasons for leader/organizer enhancement was not plain error

U.S. v. Marquez, 833 F.3d 1217 (8/12/16) (NM) (Published) - No relief for plain error failure to explain a leadership enhancement under USSG § 3B1.1. The 10th holds the district court plainly failed to live up to its duty to set out the factual basis and reasoning for imposing a leader/organizer enhancement. But no-go on the third plain-error prong. Mr. Marquez could not show the failure to explain made a difference in the outcome [a virtually impossible burden regarding any failure-to-explain error]. The record supported the bump because Mr. Marquez did quite a bit of organizing of two couriers to "orchestrate" the sale and transfer of meth from Arizona to New Mexico. No control was necessary. It was enough that Mr. Marquez coordinated and oversaw the enterprise. Sustained conduct is unnecessary. The "one-off" venture was sufficient.

Thursday, April 13, 2017

"Use" element of 18 U.S.C. § 2251(a) is met by defendant's active involvement in producing child porn, whether or not victim knows

United States v. Theis, 2017 WL 1325680 (10th Cir. April 11, 2017) (KS): Theis was charged with attempted sexual exploitation of a child. The undisputed evidence showed that with hidden cell phones he recorded his girlfriend’s 11 year old daughter while she showered and used the toilet. On appeal he said the charge failed to state an offense and this evidence was insufficient to convict him. 18 U.S.C. § 2251(a), according to Theis, requires a causal, interactive relationship between the accused and the minor: “mere voyeurism” does not satisfy the “uses” element of the statue. Tha Panel rejected this novel argument. The statute punishes those who employ, use, persuade, induce, entice or coerce any minor to engage in any sexually explicit conduct. Theis explained that he could not have “used” the minor when she was unaware he secretly recorded her and because he had no control or influence over what she did during the recording. The panel countered that the specific context in which the word is used and the broader context of the statute as a whole demonstrate that a causal relationship between the accused and the minor’s sexually explicit conduct is not required. By including the term “uses” the statute includes an accused’s active involvement in producing a depiction, “even if the interpersonal dynamics between the defendant and the depicted minor are unknown.” Thus, the “uses” element is met with proof that the accused intentionally filmed or photographed a minor’s “sexually explicit conduct.”

Theis also asked to be resentenced because the district court invited him to speak only after it announced its proposed sentence. The panel was unpersuaded. It said that the court had not definitively announced its sentence before Theis spoke. The court repeatedly characterized its proposed sentence as tentative. Besides there was no indication that Theis believed the court had already made up its mind. Theis spoke at length, encouraging the court to impose a more lenient sentence. The court then responded to Theis’s plea which “suggests it considered his comments in arriving at the sentence ultimately imposed.” This exchange shows that Theis had a “meaningful opportunity” to address the court.

Prosecutor May Threaten Defendant with Applicable Sentencing Enhancements in Plea Negotiations

United States v. Creighton, 2017 WL 1325678 (10th Cir. April 11, 2017 (WY): The panel affirms Creighton’s life sentence and rejects his challenge that this sentence was the result of prosecutorial vindictiveness. Four weeks before trial, the prosecutor emailed defense counsel and said that she thought Creighton had information that would be helpful to law enforcement. She included a proffer letter and added that she would be asking for “management” permission to file notice of a 21 U.S.C. § 851 enhancement. After getting permission, she emailed again asking for Creighton’s cooperation and/or guilty plea. Creighton went to trial, lost and was sentenced to a mandatory life prison term. On appeal he argued the prosecutor filed the enhancement out of vindictiveness. The panel disagreed. It said Creighton could not show actual or the realistic likelihood of vindictiveness. Here, the prosecutor presented Creighton with the “unpleasant alternatives” of pleading guilty and cooperating or facing charges on which he was plainly subject to prosecution. The panel rules that in the course of plea discussions, a prosecutor may threaten to subject an accused to a sentencing enhancement if he does not cooperate, as long as he actually qualifies for the enhancement.

Assault on a federal employee is not a violent felony

United States v. Ama, 2017WL1325247 (10th Cir. April 11, 2017) (UT): The panel finds that 18 U.S.C. § 111, assault on a federal employee, is not a violent felony as defined by the ACCA’s force clause. It says that § 111(a) is not divisible and the modified categorical approach is not applicable. The government argued (as it has in numerous Johnson habeas pleadings) that the modified categorical approach could be used to determine which of the alternative means were used to commit the offense. The panel explains the government is wrong because § 111(a)’s phrase “forcibly assaults, resists, opposes, impedes, intimidates, or interferes” are not elements, “but alternative means of committing the actus reus element of the offense.” The panel also dismisses the government’s argument that § 111(a) requires forcible conduct. It rules that even if the term “forcibly” extends to all six means, the offense requires force, but not violent force as defined in Johnson I (559 U.S. at 140). The panel points out that “even minor contact, such as laying one’s finger on anther person without lawful justification is forcible.” In other words, “mere forcible contact” which is enough to convict under § 111(a), does not rise to the level of physical force defined in Johnson I. The panel cites to numerous cases which illustrate that “mere contact” was enough to sustain a § 111(a) conviction.

Tuesday, April 11, 2017

US v. Holcomb, Docket No. 16-2077 (10th Cir. 4/11/17)

The Court granted the government's motion to publish the decision.

Jail Telephone Recordings of Co-conspirators Were Properly Admitted in Meth Conspiracy Prosecution

U.S. v. Alcorta, 2017 WL 1314837 (4/10/17) (Kan.) - Conspiracy conviction affirmed. The evidence was sufficient, including documents, texts, phone calls, and statements that linked Mr. Alcorta to three meth trafficking trips by couriers.

Recorded jailhouse conversations involving coconspirators were properly admitted. There was no Sixth Amendment violation because the conversations were not testimonial statements made for the purpose of creating evidence for the prosecution. The conversations were not inadmissible hearsay; the district court properly made required findings under Rule 801(d)(2)(E) that the government showed that a conspiracy existed, the defendants were participants in it, and the coconspirators' statements were made in the course of, and in furtherance of, the conspiracy. The conspiracy was ongoing, despite coconspirators' arrests. And there was adequate nonhearsay evidence linking Mr. Alcorta to the conspiracy.

Monday, April 10, 2017

Oklahoma Statute Prohibiting Pointing a Firearm Is Not An ACCA Predicate; Helpful Discussion of Categorical Approach and Plain Error Review

U.S. v. Titties, 2017 WL 1102867 (3/24/17) (Okl.) (Published) - Sorry about the title. Oddly, a footnote reveals the defendant's real name is Tittle and that name is used throughout the opinion. Why the title is different is a mystery. Anyway, the 10th applies Mathis to an Oklahoma statute that prohibits pointing a firearm, finds that the modified categorical approach can't be used because various purposes for pointing the firearm are means, not elements, finds at least one of the purposes does not satisfy the "physical force" clause, finds Mr. Tittle is not subject to the ACCA on plain error review and overrules two prior bad cases in the process.

The 10th, (Judges Matheson & Briscoe) rejects the government's claim of invited error. Before the district court, Mr. Tittle didn't object to the court's use of the modified categorical approach, given 10th precedent against him. The 10th says Mr. Tittle didn't invite error. He just recognized binding precedent at the time.

The relevant statute prohibits pointing a firearm without lawful cause for the purpose of threatening, etc. or "for purposes of whimsy, humor or prank." Underlying pleadings indicated Mr. Tittle violated a part of the statute that would fit within the "physical force" clause. Under Mathis, the 10th had to ask the question whether all the purposes were just means to commit the offense or elements of the offense. If the former, then the 10th couldn't engage in the modified categorical approach. First, the 10th recognizes Mathis overrules U.S. v. Trent, 767 F.3d 1046 (10th Cir. 2014), which held it didn't matter for ACCA purposes whether alternative terms were means or elements. Then the 10th applies the analysis Mathis approved. Importantly, the 10th stresses that Taylor demands that courts be "certain" an offense qualifies as a predicate before imposing an ACCA sentence. The 10th finds that state law indicates the purposes are means, not elements because: case law lumps the means together in describing the offense, e.g. the statute prohibits pointing a firearm "with some kind of improper purpose," and "the act must be done with at least one of several purposes, including" some of the purposes, not all; and the UJI lists the purposes with slashes in between them. And the charging document in Mr. Tittle's case indicates the purposes are means, rather than, elements, because it lists all the different purposes. So no modified categorical approach. This means U.S. v. Hood, 774 F.3d 638 (10th CIr. 2014), which applied the modified categorical approach to the same statute, is overruled on that basis.

The 10th provides a helpful footnote on plain error. It rejects the government's argument that, given all the analysis the 10th went through to get to the result, the error was not plain. But the 10th responds: "an illegal sentence triggers per se reversible plain error." The 10th goes on to say the government overstates its contention that plain error requires an on-point decision. That's not always a requirement, the 10th says. And the government's stress that the means/elements decision here is uncertain actually helps the defendant, the 10th says. The government has the burden to definitely prove the conviction is an ACCA predicate.

Finally, the 10th follows the Hood's decision that the statute's "whimsy, humor or prank" part does not qualify under the "physical force" clause. The 10th distinguishes the Oklahoma statute from the NM Agg assault statute that the 10th held did satisfy the "physical force" clause in U.S. v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010). NM's statute requires purposeful threatening that actually caused the victim to fear an imminent battery. That's not true for pointing a firearm with whimsy in mind. To top it off, the 10th says some good things about "realistic probability." The government says Mr. Tittle didn't provide any case where someone was actually prosecuted for pointing a gun in jest and so he didn't show there was a reasonable probability of prosecution on that basis, as is often required. The 10th says the lack of prosecution doesn't matter. The plain language of the statute allows such a prosecution and that is all that matters. The 10th notes that the Mathis Court never addressed the reasonable probability question.

Judge Phillips dissents. He finds Shepard v. U.S, 544 U.S. 13 (2005), to be significant. He thinks Shepard amounted to a holding that the listing of "buildings, structures, vehicles or vessels" was a listing of elements,11 years before Mathis. He then decides the Oklahoma statute is more like the Massachusetts statute in Shepard than the Iowa statute in Mathis. He's unconvinced by the majority's analysis of state law.

In Related Cases, Court Holds Evidence Proved One Conspiracy; Suppression Not Appropriate Remedy for Improper Wiretap Orders; Resentencing Ordered For One Defendant

United States v. L. Dahda, 2017 WL 1228545 (April 4, 2017) (KS): L. Dahda was convicted of conspiring with others to distribute 1000 kilos or more of marijuana. In his appeal he said; the evidence was insufficient to prove one large conspiracy, and because the evidence was insufficient there was an unconstitutional variance between the large conspiracy charged and the numerous smaller conspiracies established at trial. He also argued that his motion to suppress wiretap evidence should have been granted, and that the jury instruction on maintaining a drug premises was compromised because it did not tell the jury the government had to prove that storing or distributing drugs was the primary purpose for which L. Dahda used the premises. Finally he argued that the court’s sentence was unconstitutional because the jury was not asked to find the conspirators distributed a specific amount of marijuana; and that the court erred in imposing a $16,985,250 fine. The panel agreed only with this last point because the amount was over the statutory limit.

The panel said there was sufficient evidence of a conspiracy because L. Dahda and other conspirators shared in the transportation and storage of money and drugs. Although there was evidence certain participants, like L. Dahda, selected their own marijuana and then kept track of that marijuana and their money, because the conspirators transported their wares together, that showed they were interdependent. Besides, the conspirators also bought and sold marijuana from one another. For these reasons there was no variance. Even if at times certain conspirators operated within smaller groups, at other times they all operated together. In other words, there was adequate evidence of one vast conspiracy.

The panel wrote extensively about the wiretap authorization orders. It concluded that according to 18 U.S.C. §§ 2510-20, the district court’s orders were improper because they authorized the use of a stationary listening post outside of the district court’s territorial jurisdiction. However, suppression was not the remedy because limiting territorial jurisdiction was not Congress’s “core concern” in promulgating Title III. Instead that title’s goals are to protect the privacy of oral and wire communications and establish a uniform basis for authorizing the interception of those communications. It still might be worth raising this issue since the panel noted there is a circuit split regarding the remedy. In United States v. Glover, 736 F.3d 509, 515 (D.C. Cir. 2013), the court ruled that territorial jurisdiction is a core concern of Title III and so suppression is an appropriate remedy when the wiretap authorization is improper. In United States v. North, 735 F.3d 212, 215-17 (5th Cir. 2013), the Fifth Circuit agreed that suppression is the correct remedy for a violation of the Wiretap Act.

Regarding, the jury finding on the amount of marijuana, the panel decided that the amount was an element of the offense on which the jury was instructed. The conspiracy charge included an allegation that the conspirators distributed 1,000 kilos or more of marijuana and the court told the jury it had to find that the “overall scope of the agreement involved more than 1,000 kilos of marijuana.” Consequently, there was a finding that L. Dahda was involved in distributing a certain amount of marijuana and the court was allowed to sentence him to more than five years on that count.

The panel ruled that L. Dahda “waived” the drug premise instruction argument. At trial he told the district court that he was not challenging the content of that instruction. He did argue, however, that there was not enough evidence to justify the instruction and it should not be given. The panel noted that a “waiver” is the intentional relinquishment or abandonment of a known right that does not entitle the party to appellate relief. Forfeiture is a failure to make a proper objection but a party still may seek relief for plain error. Here, L. Dahda “waived” the instruction issue because he did not “challenge the content of the jury instruction.” The lesson apparently is that when objecting to the necessity of an instruction, one also should object to the instruction’s contents to preserve the issue for appeal.

United States v. R. Dahda
, 2017 WL 1228547 (April 4, 2017) (KS): The panel ruled against R. Dahda (the brother of L. Dahda) on issues similar to his brother’s. However, the panel did remand for resentencing because it found the district court incorrectly quantified the amount of marijuana for which it believed R. Dahda was responsible. The panel held, it was reasonably foreseeable that he was responsible for more marijuana than he actually possessed because “he knew or should have known” that the conspiracy was trafficking in amounts greater than his. Still, what those amount were was “vague” at best. At trial, conspirators testified that toward the end of the conspiracy there “could have been” times when the pallets held 80 pounds of marijuana. The probation office used that amount to extrapolate that 80 pounds was the average of amount per load and R. Dahda was responsible for 1600 pounds. The panel pointed out this calculation was based on “insufficient minimally reliable evidence” because the evidence showed the quantities varied. For example, one conspirator said that each pallet contained between 5-10 pounds to 80 pounds. Because the testimony was “vague, conflicting, and unsupported by other evidence” the court’s finding was speculative and its error was not harmless.

Although R. Dahda may get some sentencing relief on remand, the panel did approve of the district court’s 33 month upward variance because R. Dahda’s was “legally and morally responsible” for the extra prison time a co-conspirator was given. The panel believed there was adequate evidence that R. Dahda had pressured this co-conspirator into not cooperating with the government. R. Dahda had written the co-conspirator after his trial to tell her she could try for the safety valve adjustment. She followed this instruction but only then because she had not wanted to testify against the Dahda brothers. When she spoke with the agents they believed she was untruthful because she “minimized the criminal activity of individuals related to” R. Dahda. Hence, no safety valve adjustment and an imprisonment term 12 to 33 months higher than she might have been given.

Finally, the panel approved of the $16 million forfeiture order even though the district court violated Rule 32.2. That rule requires the court to enter a preliminary forfeiture order so the parties may suggest revisions before the order becomes final. Here, the court did not do that. But the outcome was unaffected because R. Dahda had notice of the potential forfeiture amount from the superceding indictment and he objected to any forfeiture before the hearing.