POSITION ANNOUNCEMENT: Assistant Federal Public Defender- Las Cruces 2018-02

The Federal Public Defender for the District of New Mexico is seeking two full time, experienced trial attorneys for the branch office in Las Cruces. These positions were originally advertised as temporary positions, with a term of employment not to exceed one year and one day each. These have now been converted to permanent full time positions. More than one vacancy may be filled from this announcement. Federal salary and benefits apply.

Applicant must have one year minimum criminal law trial experience, be team-oriented, exhibit strong writing skills as well as a commitment to criminal defense for all individuals, including those who may be facing the death penalty. Spanish fluency preferred. Writing ability, federal court, and immigration law experience will be given preference. Membership in the New Mexico Bar is required within the first year of employment. The private practice of law is prohibited.

Selected applicant will be subject to a background investigation. The Federal Public Defender operates under authority of the Criminal Justice Act, 18 U.S.C. § 3006A, and provides legal representation in federal criminal cases and related matters in the federal courts. The Federal Public Defender is an equal opportunity employer. Direct deposit of pay is mandatory.

In one PDF document, please submit a statement of interest and detailed resume of experience, including trial and appellate work, with three references to:

Stephen P. McCue, Federal Public Defender
FDNM-HR@fd.org
Reference 2018-02 in the subject.

Writing samples will be required only from those selected for interview.

Applications must be received by February 23, 2018. Previous applicants for the temporary positions need not apply again. Your submission will be included for consideration. Positions will remain open until filled and are subject to the availability of funding.

No phone calls please. Submissions not following this format will not be considered. Only those selected for interview will be contacted.

Use of Deadly Force OK If Person Is Fleeing

Farrell v. Montoya, 878 F.3d 933 (10th Cir. 2017): In this appeal from the district court's denial of summary judgment on plaintiff's excessive force claim in a Section 1983 civil rights case, the Tenth reverses. In this case, which made the internet, NM State Police officers fired shots into plaintiff's minivan, in which five children were passengers, thankfully not hitting any of them. The Tenth Circuit held that, because the defendant was fleeing the officers when they fired the shots, she and her passengers were not "seized" at the time because they were not submitting to the officers' authority. "As there was no seizure, there was no unreasonable seizure, even if [Officer] Montoya was using deadly force." In short, if you're running away, officers get a free shot.

Unpublished decisions

U.S. v. Kieffer, 702 F. App'x 734 (7/27/17) (Col.) (unpub'd) - Supervised release conditions, Rule 36 victory for the defense. The 10th previously vacated the district court's restitution order due to lack of proof. On remand, the district court not only eliminated restitution from the judgment, it also took out 7 special financial supervised release conditions, putting "None *" in their place. The judgment said "changes identified with asterisks." Nine months later the district court added back the 7 deleted conditions, saying it was doing so pursuant to Rule 36. The 10th decides the district court deliberately deleted the conditions because: it didn't just leave the space for conditions blank, but added "None" with an asterisk; and it made a certain amount of sense to take out the financial conditions because they were sort of related to the restitution that had been eliminated [this was true even though Mr. Kieffer never objected to those conditions]. Since the deletion was a substantive intentional change, not inadvertent, it was not a clerical error that could be rectified under Rule 36. The 10th rejected the government contention that the conditions were valid because they were orally announced at an earlier sentencing. The condition deletion took place long after that hearing and was in response to the 10th's remand, not the earlier sentencing, the 10th reasons. So the 10th orders the conditions stricken.
Judge Bacharach dissents. He believes it wasn't clear whether the conditions deletion was intentional. So, when the district court decided to add them under Rule 36, the 10th should defer to the district court's implicit determination that the deletion was an inadvertent clerical mistake.

U.S. v. Garcia-Damon, 702 F. App'x 743 (7/28/17) (N.M.) (unpub'd) - The 10th rejects procedural sentencing objections as well as Mr. Garcia's substantive reasonableness argument. Defense counsel argued the 46-month, bottom of the guideline range, sentence was unduly harsh because, under subsequently amended guidelines, Mr. Garcia's guideline range would have been 10-16, not 46-57, months. The 10th admits it finds this argument "sympathetic." The 10th, however, finds no authority to overturn the sentence solely based on the new amendments. It notes 10th precedent, Vasquez-Alcarez, 647 F.3d 973, 979 (2011), denying such a request, and an unpublished decision rejecting the argument on the grounds that otherwise the Sentencing Commission's prerogative to find an amendment non-retroactive would be undermined.

Admission of Evidence of First Wife's Death and Previous Accident to Second Wife Ok in Prosecution for Murder of Second Wife

U.S. v. Henthorn, 864 F.3d 1241 (7/26/17) (Col.) (Published) - In an appeal of Mr. Henthorn's conviction for first degree murder of his second wife, the 10th finds no abuse of discretion in the district court admitting 404(b) evidence of the suspicious death of Mr. Henthorn's first wife and his second wife previously being hit with a heavy beam. The 10th finds the evidence was relevant to prove Mr. Henthorn's plan and specific intent to kill and also to counter Mr. Henthorn's defense that his second wife accidentally fell 100 feet from a remote cliff in Rocky Mountain National Park. The 10th finds both prior incidents were "extraordinarily similar" to the charged offense. Mr. Henthorn's first wife died after they stopped alongside a remote road to change a tire that was merely low, not flat, and the car fell on top of the wife. People did CPR on her over Mr. Henthorn's protests. Mr. Henthorn made lots of inconsistent statements. A shoe print on the fender indicated someone may have pushed the car off the jack. Mr. Henthorn collected $600,000 from many life insurance policies. As for the second prior incident, in the dark at a secluded cabin, the second wife was hit with a beam while Mr. henthorn was nearby. Mr. Henhorn told inconsistent stories and had taken out life insurance for millions. The 10th notes the similarities included: remote locations with impeded communications, delayed emergency responders and reduced likelihood of accidental witnesses; Mr. Henthorn's inconsistent stories; his first wife died after 13 years of marriage, while his second wife died after 12 years of marriage; Mr. Henthorn was set to recover lots of insurance proceeds from each death; Mr. Henthorn had the women's bodies cremated; Mr. Henthorn asserted the same tragic accident defense. These similarities overshadowed the 17-year gap between the first wife's and second wife's deaths.
In the course of the decision, the 10th advises that 404(b) evidence is admissible even if it has potential to infer criminal propensity. That's okay as long as the evidence doesn't require such inferences. Here, based on the "logic of improbability," the prior similar incidents decrease the likelihood that Mr. Henthorn lacked the requisite intent, motive and plan. The 10th notes the "common sense" observation that a string of improbable incidents is unlikely to be the result of chance. The 10th finds support for the district court's conclusion that a jury could reasonably conclude Mr. Henthorn deliberately intended to kill his wives in both prior incidents. And, assuming maximum reasonable probative value and minimum prejudicial value of the 404(b) evidence, the district court did not make an obviously wrong Rule 403 balancing. Finally, the district court gave adequate limiting instructions.

Suppression Win; Officer Lacked Reasonable Suspicion to Look at Packet of Cards in Bag

US v. Saulsberry, 2017 WL 6614468 (10th Cir. 12/28/17): A defense win; the court holds that there was insufficient probable cause to expand the search of Defendant's car. Defendant pled guilty to possessing 15 or more unauthorized credit cards with intent to defraud. He reserved the right to appeal the denial of his motion to suppress cards seized from his car. An anonymous caller reported someone smoking marijuana in a black Honda with Texas plates in an Arby's parking lot. The caller said he was an Arby's employee (for convenience, the court says it will treat the caller as male). Officer Eastwood went to the Arby's and saw a dark green Honda with Texas plates. He went up to the car and tapped on the window to get the driver's attention. Defendant opened the door and Eastwood smelled burnt marijuana. Eastwood asked defendant for his license and insurance registration. Defendant gave his name but did not provide the documents or explain why he could not do so. Eastwood testified that during the conversation, the defendant was not "listening real well" and kept reaching in a bag on the floor of the car. Fortunately for Mr. Saulsberry, Eastwood did not shoot him. Rather, Eastwood told defendant to keep his hands in his lap. Another officer arrived, and Eastwood asked defendant to get out of the car and asked for permission to search the car. Defendant granted consent to search for marijuana. Eastwood found a joint and arrested Mr. Saulsberry. Eastwood then began to search the car. The court observes that the chronology of the subsequent events is not clear from the record. However, inside the bag, Eastwood found a stack of credit cards, "a lot," not a "normal amount." There was also a machine in the passenger seat that looked similar to one Eastwood had seen in a recent credit card-fraud investigation. Eastwood looked at the cards and saw they were all Capital One cards and did not have defendant's name on them. The officers then searched for more evidence of credit-card fraud. First, the caller sufficiently identified himself to be considered a citizen informant and thus, absent special circumstances, his veracity was presumed. The tip provided sufficient detail to uniquely identify the suspect car, the information was contemporaneous and firsthand, the information was corroborated, and the caller's implicit motive was the public interest, absent reason to believe otherwise. Thus, the information was sufficient to provide reasonable suspicion to investigate. However, the government failed to convince the court that probable cause supported the expanded search for credit card fraud, mainly because (for some reason) the government did not argue that Eastwood's observation of the "machine" that looked like a machine he had previously seen used for credit card fraud supported probable cause. In fact, the government admitted at oral argument that it did not rely on that observation because it was not clear when it occurred. Instead, the government relied on the number of cards. Unfortunately, the record did not support an inference that Eastwood could tell the cards in the bag were credit cards when he first saw them because he testified that he saw a "stack of cards." The government did not explain how Eastwood could know the cards were credit cards before he handled them. Mere possession of a number of cards does not provide probable cause to suspect a crime is being committed. Defendant's reaching for the bag was not sufficient to create probable cause because there was no gun in the bag, as Eastwood could immediately tell when he looked in it. Moreover, the court reiterates its concern about giving too much weight to alleged nervousness in assessing probable cause. Accordingly, the denial of the motion to suppress is reversed.

Drug Conspiracy Convictions Affirmed

US v. Rios-Morales, 2017 WL 6625518 (10th Cir. 12/28/17): The Court affirms the defendant's convictions related to a drug conspiracy. The district court properly allowed testimony regarding the defendant's involvement in a prior drug conspiracy in which the defendant traveled from Kansas to California to obtain drugs. The testimony was relevant under FRE 404(b) to prove defendant's motive to initiate the charged conspiracy as a new source of supply after the prior conspiracy ended and was relevant to prove the defendant's knowledge that the car left at his apartment by the witness and defendant's brother contained drugs and whether defendant intended to possess the drugs. The evidence was not unfairly prejudicial. The defendant raised as plain error numerous alleged instances of prosecutorial misconduct. These included: Defendant contended that the prosecutor's argument that the $300 per pound the defendant would make was a lot of money to someone paying child support argued facts not in evidence. However, a government exhibit included information about defendant's child support payments, so the prosecutor could properly refer to it. The AUSA's argument that "the only reason this conspiracy is going on is because of one person. Jose Rios-Morales" was not improper even though two other people were involved. In context, it referred to the trial testimony that defendant initiated the conspiracy. The prosecutor's reference to defendant's employment records as corroboration of a witness's testimony regarding the travel dates was not improper bolstering of the witness's credibility. It was not plainly improper vouching for the AUSA to argue that the jury could infer the witness was telling the truth because, among other things, the defendant engaged in counter-surveillance measures. It was not improper for the prosecutor to refer to the prior conspiracy without also reminding the jury of the limited purpose for admission of that evidence. Neither these nor the other claims satisfied the plain error standard. The Court rejects the defense argument that he should have been granted a mistrial based on the key government witness's alleged misrepresentations and omissions in his testimony. Basically, the Court says the witness did not lie and the defense was able to elicit all the necessary relevant testimony. Finally, the defendant asserted that the Court mishandled an incident that could have been construed as attempted witness intimidation when an unknown man was in the juror parking lot and made a couple of them nervous. The court questioned several jurors about the incident and directed them to park in a secure lot and to go to their cars in a group. The trial court did not abuse its discretion in concluding the jurors could be fair and impartial. Since there was no error, there was no cumulative error.

Prior Colorado Drug Offense is Overbroad; Application of Career Offender Guideline was Plain Error

US v. McKibbon, 2017 WL 6614572 (10th Cir. 12/28/17): Great categorical analysis win. On plain error review, the Court reverses the district court's application of the career-offender enhancement based on defendant's prior Colorado drug conviction. Colo. Rev. Stat. § 18-18-405(a)(1) criminalizes a broader range of conduct than that included in § 4B1.2(b). The Colorado statute includes "sale" of a controlled substance, which under Colorado law includes offers to sell, while the career-offender definition of "controlled substance offense" does not expressly include offers to sell. The Court rejects the government's argument that the Colorado Supreme Court "'would probably' require proof of a bona fide offer to sell controlled substances to support a conviction" because the plain language of the statute does not include the qualifier "bona fide" and there is no Colorado state law stating such a requirement. The Court also rejects the government's argument that the statute is divisible, because the Colorado Supreme Court expressly stated in State v. Abiodun, 111 P.3d 462 (Colo. 2005), that §18-18-405(a)(1) "defines a single offense."