Unpublished Decisions

U.S. v. Kundo, 2017 WL 3084628 (7/20/17) (Ut.) (unpub'd) - Three judges different than those who decided U.S. v. Autobee, 2017 WL 2871893 (7/6/17) (unpub'd) agree with the conclusion reached in Autobee, without mentioning Autobee, that a § 2255 Johnson challenge to a § 924(c) conviction is untimely. So this does not bode well for the rehearing petition in Autobee, which did at least prompt the 10th to order the government to respond to the petition.

U.S. v. Muhtorov, 2017 WL 3098109 (7/21/17) (Col.) (unpub'd) - The 10th overturns a release order for a man charged with conspiring to provide resources to a foreign terrorist organization, the Islamic Jihad Union, where the defendant has been detained for five and a half years. The district court thought the government's case had weakened since the court had twice before denied Mr. Muhtorov's requests for release. The 10th disagreed on de novo review with the lower court's assessment in that regard. Mr. Muhtorov was still a danger and a flight risk, the 10th concludes. Oddly, there is no discussion of the due process limits on a detention length. At some point, due process is implicated the longer a defendant is detained, even if the danger and flight risks don't change.

Cops Could Rely On Warrant Permitting Electronic Searches Outside of Issuing Court's Jurisdiction, Tenth Says

U.S. v. Workman, 863 F.3d 1313 (7/21/17) (Col.) (Published) - The 10th reverses a suppression order because the good faith exception saves a warrant permitting electronic searches outside the district of the issuing court. As you've probably heard, the FBI seized control of an illicit child porn website, "Playpen", and used malware to identify and find individuals accessing child porn. The FBI obtained a warrant from a magistrate judge in the Eastern District of Virginia. The warrant allowed the FBI to install software onto the Playpen server. When Playpen was accessed, the software would automatically install malware onto the user's computer. The malware searched the user's computer for identifying information, e.g. an IP address, and sent it to the FBI. Through one of the IP addresses the FBI identified the user as Mr. Workman who lived in Colorado. The FBI got a warrant in Colorado to search his computer. The 10th gives us no guidance as to whether the warrant was unlawful. Instead it assumes it was and finds good faith. Mr. Workman argued the good faith exception didn't apply because there was essentially no warrant at all. It was void from the beginning [or ab initio for us Latin fans]. The 10th doesn't think that matters. In Herring v. U.S., 555 U.S. 135 (2009) and Arizona v. Evans, 514 U.S. 1 (1995), officers mistakenly believed warrants existed when they really didn't. Yet the good faith exception applied. So here, even if the magistrate judge exceeded geographic constraints, the agents could have reasonably relied on the warrant because the software was installed in Virginia, the issuing judge was in Virginia and all the information was retrieved in Virginia. The 10th concedes that agents with sophisticated legal training might have recognized the Federal Magistrate Act and Fed. R. Crim. P. Rule 41(b) prohibited the warrant. But we don't expect officers to understand "legal nuances" that an attorney would. And besides, 8 district court judges have held the same warrant complied with federal law. The Tenth distinguished U.S. v. Krueger, 809 F.3d 1109 (10th Cir. 2015) in which the 10th upheld suppression of evidence when the magistrate judge authorized a search in another district. The 10th said in that case suppression served the purpose of the exclusionary rule by deterring law enforcement from seeking and obtaining warrants that clearly violate Rule 41(b)(1). Ordinarily that rationale would eliminate application of the good faith exception. The Workman court, however, dismisses Krueger on the grounds that the government didn't raise the exception in that case.

Plain Error Claims Rejected in Child Porn Case

U.S. v. Kearn, 863 F.3d 1299 (7/21/17) (Kan.) (Published) - The 10th affirms a child porn conviction, rejecting a number of plain error arguments. The 10th holds the jury need not decide unanimously which image forms the basis for a child porn conviction. Each image is a means, not an element, of the crime. For support the 10th notes the child porn statutes, §§ 2251(b), 2252(a)(2) & 2252(a)(4)(b) refer to "any visual depiction." Judge Tymkovich analogizes to the game of Clue. Although in Clue it matters in what room and with what weapon the culprit killed the victim, in the real life child porn analogy, the jurors can disagree in which room and with what weapon the murder was committed, so long as they agree there was a murder, or rather, the jury only needs to decide an image was child porn. It doesn't matter which image. The 10th also holds: testimony that images were child porn was helpful to the jury because whether the images depicted "sexually explicit conduct" was a fact in issue and the officers' views explained why they took certain steps; officers' testimony in that regard was not expert testimony requiring a Rule 16 notice even though the government established they were trained to recognize child porn; a detective's reference to Mr. Kearn as a contact sex offender was at worst minimally prejudicial because the government's whole theory of the case was that Mr. Kearn was a contact sex offender; the admission of testimony regarding an unadmitted report did not satisfy the third prejudice prong of the plain error reversal standard because most of the report's points came out in properly admitted testimony and there was lots of evidence of Mr. Kearn's guilt; because Mr. Kearn was on trial for knowingly distributing and possessing child porn, sexually explicit images on his phone and search terms indicating his mental state did not come into trial under 404(b), rather they were intrinsic to the charged offense.

Statements by Deceased Properly Admitted as Excited Utterances

U.S. v Magnan, 863 F.3d 1284 (7/20/17) (Okl.) (Published) - The 10th holds the district court did not abuse its discretion when it admitted under the excited utterance hearsay exception three statements by the deceased identifying Mr. Magnan as the person who shot her. The first statement was contemporaneous with the excitement the startling event caused even though it occurred one and a half to two hours after the event and in response to the direct question "who shot you?" The 10th acknowledges a spontaneous statement is more likely to qualify as an excited utterance than an answer to a question, but if the excitement is severe the response may not be the product of reflective thought. Here the deceased was partly paralyzed, bleeding, very anxious and having trouble breathing at the time of the statement. The 10th finds it unlikely the deceased would be so "nonchalant about her condition she would calculate who she might unfairly blame for her injuries." While a victim's dire condition might call into question the accuracy of her statements, that is a credibility matter for the jury to determine as long as the statements are not the product of conscious fabrication. The second statement was okay to admit as well. It came about two hours after the event in response to a general "what happened?" question. The 10th indicates a general question is more likely to spur a response that fits within the excited utterance exception than a direct question. The deceased was still "within the temporal range of trauma." She was unstable, approaching shock, while strapped to a backboard and receiving fluids from an IV. The admission of the third statement was also okay, the 10th says, although it's a closer question. 4 or 5 hours after the event the deceased spontaneously reacted to the arrival of her sister in her hospital room. The 10th admits the time element increasingly favored exclusion. But time is only one factor. The "horrific" nature of the shooting and the deceased's medical condition gave the deceased a "reasonable basis for continuing emotional upset," the 10th says. Her sister described the deceased as "scared" and "anxious." The 10th finds "important" the fact that the statement was "entirely spontaneous." Given the extent of the deceased's injuries, the rendering of medical aid did not constitute an intervening event that would dilute the effect of the trauma, the 10th concludes. The 10th explicitly declines to decide if the excited utterance exception should be eliminated altogether because excitement impairs accuracy, since Mr. Magnan did not raise the issue.

United States v. Sandoval Enrique, 2017 WL 4002006 (September 12, 2017) (NM) (published): The defense tried to convince the panel that using a prior reentry sentence as a benchmark for a new reentry sentence is wrong for numerous reason: First, in rejecting two fast track plea agreements the district court failed to give adequate deference to the legislative policy behind those agreements. Second, it did not adequately consider that the prior sentence was imposed in a district without the fast track program and that the sentence there was excessive in light of the client's personal history. Third, after emphasizing the need for deterrence, the court believed, incorrectly, that legally it could not use supervised release as part of its sentence when the sentencing guidelines prescribed supervision to fulfill exactly that need. Finally, the court improperly inserted itself in the parties’ plea bargaining by disclosing the prison range it felt was appropriate.

Unfortunately, the panel was unmoved. In essence it held that: (a) a district court does not abuse its sentencing discretion when it uses a prior sentence as the starting point for the new offense’s sentence; and (b) a district court may announce a prison term or range it finds acceptable without violating Fed. R. Crim. P. 11(c)(1)’s directive that it not participate in plea discussions, if it does so while giving its reasons for rejecting a binding plea agreement.

On a positive note, the panel rejected the government’s motion to dismiss Sandoval’s appeal as moot. After completing his prison term, Sandoval was deported before his opening brief was filed. Because he was challenging his conviction, the panel held his appeal was justiciable.

Tribal convictions can be basis for upward sentencing variance

Norton v. Ute Indian Tribe of the Uintah and Ouray Reservation, 862 F.3d 1236 (7/11/17) (Ut.) (Published) - The 10th says" "nearly five decades of tribal cases applying the Indian Civil Rights Act show that tribal courts protect the rights of both member and nonmember litigants in much the same way as do federal and state courts." The probation office, the government, and courts could rely on this to justify an upward variance based on tribal convictions.

An important coerced confession decision

U.S. v. McNeal, 862 F.3d 1057 (7/10/17) (Col.) (Published) - In this straw-gun-buyer case, the Court rejects defendant's claim that her confession was induced by threats that silence would be used against her. First, the 10th rules it reviews a district court's factual findings for clear error, not de novo, even when, as here, the entire interaction between the officers and the defendant is on videotape. The district court has an institutional advantage over an appellate court even in that situation. Next, while acknowledging Ms. McNeal raised a "significant issue," the 10th finds to be supported by the record the district court's factual finding that the officers did not threaten Ms. McNeal for exercising her right to refuse to answer. The 10th essentially concedes such a threat would be unconstitutionally coercive. But the 10th doesn't see that happening in this case where an officer said: "You've had ample opportunity to talk to us about what happened" and asked: "So are you going to do the right thing and talk?" and then warned her that "an attempt to influence a public official is a felony charge." The 10th says context shows those statements were not threats that silence would be punished. Ms. McNeal was never told she had to talk, the 10th claims. Rather, the officers gave her Miranda warnings at the beginning and reminded her of her rights during the interrogation. The felony charge threat only happened after Ms. McNeal told an apparent lie to try to protect her son. [She said she bought a gun for her own protection because she had been shot in the leg, but officers saw no evidence of leg bullet wounds.] So the officers' "concern was not silence but falsehood," the 10th concludes. Then, the 10th holds it was not per se coercion to warn of a felony charge when the warning was accurate. So the 10th affirms her § 922(d)(1) conviction for buying a gun for her felon son. The 10th also summarily denies Ms. McNeal's contention that Congress lacked power under the Commerce Clause to enact § 922(d)(1). And the 10th dismisses Ms. McNeal's contention she was entitled to a momentary possession defense because she proffered no legally justifiable reason for her son to possess the firearm for a brief period.