No Error Committed Where District Court Limited Defense Evidence of Alternative Perpetrator

United States v. Meisel, 2017 WL 5346382 (November 14, 2017) (KS) (J. Murphy)(published): The panel finds the district court did not violate Meisel’s right to present a complete defense by restricting his alternative perpetrator evidence. The trial court told Meisel, that without proof, he could not argue others had downloaded the child pornography on his computer. Although the panel concedes he presented persuasive evidence that others had used his computer in his absence, the court’s error, if any, was harmless. First, these people testified that they used Meisel’s computer so that in closing he was able to credibly argue that they downloaded the pornography. Second, Meisel’s guilt was overwhelming - the government showed the pornography was frequently accessed outside the times when others were using his computer. The panel also affirmed the trial court’s decision not to give Meisel’s modified identity instruction. It concluded his proposed instruction was a theory of defense instruction, not one as to potential reliability issues regarding an eyewitness to the child pornography charges. Besides, notes the panel, a theory of defense instruction is not required if it would simply give the jury a clearer understanding of the issues. Remember this line when the government asks for an instruction specifically crafted to bolster its case.

Court Affirms that Intent to Control Must Be Proven in Constructive Possession Cases Where Area is Jointly Controlled

United States v. Benford, 2017 WL 5346387 (November 14, 2017) (OK) (J. Baldock)(published): A helpful case if you are challenging an unlawful possession of a firearm charge, when the firearm was found in a jointly occupied space. The panel grants Benford a new trial thanks to United States v. Little, 829 F.3d 1177 (10th Cir. 2016). Benford was charged with being a felon unlawfully in possession of a firearm. A pistol was found inside the open pouch of a computer bag in a jointly occupied bedroom. The panel found that after Little, it was plain error not to instruct the jury that the government was obligated to prove beyond a reasonable doubt that Benford intended to exercise dominion or control over the pistol. The panel stresses that when an accused jointly occupies the premises on which the firearm is found, the government has to prove a nexus between him and the firearm - specifically that he had knowledge of and access to the firearm and that he intended to exercise dominion or control over it.

Perez-Vargas and Rodriquez-Enriquez ABROGATED!

United States v. Ontiveros, 2017 WL 5147257 (November 7, 2017) (CO) (J. Kelly)(published): The panel decides that United States v. Castleman, 134 S.Ct. 1405 (2014), abrogates its earlier opinions in United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005) and United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008). It uses Castleman’s holding - which the Supreme Court limited specifically to misdemeanor domestic violence offenses - to apply to felony crimes of violence. Any felony offense which requires the knowing or intentional causation of bodily injury necessarily involves the use of physical force. By expanding Castleman, the panel allowed itself the following logic: “If it is impossible to commit battery without applying force, and battery can be committed by an omission to act, then second-degree [Colorado] assault must also require physical force.” Thus, a Colorado assault conviction in which a son has neglected to care for his father, is now an offense perpetrated with the use of violent, physical force.

Court Affirms Life Sentence for Drug Trafficker

US v. Lopez-Garcia, 2017 WL 5485333 (10th Cir. 11/14/17) (unpublished): Mr. Lopez-Garcia was convicted after a jury trial of conspiracy and possession with intent to distribute more than 50 grams of methamphetamine and of possessing firearms as an illegal alien. Alien or not, the district court decided he should spend the rest of his life on US soil, albeit in a federal pen, because of his leadership role in the organization, his maintenance of the residence used to facilitate the drug trafficking, his possession of firearms, and his involvement in importing the drugs through the Sinaloa cartel, in which his brother is a high-ranking leader. The probation officer concluded his offense level was 48 and the advisory guideline range was life. Unsatisfied, the government argued for two additional points for obstruction of justice, based on threats witnesses received before trial. The district court granted the objection. Defendant challenged the reasonableness of his sentence. The Tenth Circuit finds that the sentence was both procedurally and substantively reasonable. There was plenty of evidence to support the district court's conclusion that threats were made and the defendant was responsible. There was "no legal merit" to the argument that the district court failed to consider the sentencing goal of rehabilitation because "18 U.S.C. § 3582(a) 'prohibits consideration of rehabilitation in setting ... the term of imprisonment." The sentence was also substantively reasonable.

Appeal Waiver Enforced on Subsequent Appeal Following Remand

US v. Titties (Titties II), 2017 WL 5438588 (10th Cir. 11/14/17) (unpublished): In his first appeal, Mr. Titties (aka Tittles) convinced the Tenth Circuit that he was no longer subject to the Armed Career Criminal Act following the Johnson decision. On remand, the district court gave him the maximum sentence of 10 years for his felon in possession conviction. He appeals that sentence. This time around, the Tenth Circuit enforces the plea agreement and dismisses the appeal.

Defendant Cannot Use 2241 Motion to Allege Speedy Trial Violation

Medina v. Choate, 2017 WL 5380912 (10th Cir. 11/14/17) (published): Mr. Medina has been in jail long enough awaiting trial that he has filed motions seeking dismissal on the grounds he's been denied his constitutional right to a speedy trial. Unsuccessful in the trial court, he filed a petition pursuant to 28 USC § 2241 in the district court. The district court dismissed the motion on the grounds Mr. Medina had failed to exhaust available remedies. The Tenth Circuit affirms and says, "[W]e now adopt the general rule that § 2241 is not a proper avenue for relief for federal prisoners awaiting federal trial." The Court will not make an exception for speedy trial claims. After all, he can ask the trial court for relief. If he gets no relief and is convicted, he can appeal. If his appeal fails, he can file a motion pursuant to 28 USC § 2255. No short cuts allowed.

Alleging Fraud on the Court Does Not Excuse Petitioner from Complying with AEDPA Requirements

U.S. v. Springer, 2017 WL 5247785 (11/13/17) (Okla. published) - Mr. Springer had been convicted of conspiracy to defraud the U.S., tax evasion, and willful failure to file tax returns. He filed a "motion to enjoin enforcement" of the judgment against him, claiming prosecutors committed fraud on the court by misrepresenting their authority to prosecute him. The district court had summarily dismissed the motion on the merits as frivolous. The Tenth decides it lacks jurisdiction and dismisses for that reason. Mr. Springer's motion constituted a second or successive § 2255 because it challenged his underlying conviction; the district court lacked subject matter jurisdiction to decide it on the merits because Mr. Springer did not obtain certification to file a second or successive motion. A claim of fraud on the court is not excused from compliance with AEDPA. Both the certification to file a second or successive motion and a certificate of appealability are jurisdictional prerequisites to federal courts' exercise of subject matter jurisdiction under AEDPA. The Tenth dismisses Mr. Springer's appeal because he failed to make the necessary showing to obtain a certificate of appealability.

Defendants convicted of misdemeanors in connection with protest of BLM closure order

U.S. v. Wells, 2017 WL 4767529 (10/23/17)(Utah)(published) - affirmance of defendants' misdemeanor convictions for operating ATVs on BLM land to protest BLM closure order and conspiracy. The COA rejects the following arguments: (1) the district judge should have sua sponte recused himself -- a judge's adverse rulings and ordinary efforts at courtroom administration are insufficient and the trial judge's friendship with the Southern Utah Wilderness Alliance legal director would not have caused a reasonable observer to question the judge's impartiality; (2) the prosecution was vindictive and constituted retaliation for exercise of First Amendment rights -- no evidence was presented of prosecutorial hostility toward exercise of First Amendment rights; (3) indictment adequately set forth interdependence element of conspiracy charge; (4) there was sufficient evidence of one defendant's agreement to act as a coconspirator, not just as a journalist; (5) government failure to produce a 1979 map showing a possible public right-of-way through BLM land and maybe calling into question the lawfulness of the BLM closure did not violate Brady -- the order was not material to defendants' good-faith defense, it was unclear that the map even showed the existence of a right-of-way, and defendants were unaware of the map at the time of their offenses; (6) restitution order was proper -- the government presented evidence establishing both that defendants caused the claimed damages and the amount of actual loss, including costs of damage assessment and repair of soil damage.