US v. Garcia-Martinez, 2018 WL 1767712 (10th Cir. April 12, 2018) (unpublished): In this drug case, the Tenth Circuit rejects defendant's arguments that the government violated Giglio and Brady by failing to disclose impeachment information regarding two confidential informants, and that the district court erred by allowing an expert witness to testify regarding his mental state in violation of FRE 704(b).

Federal Bank Robbery is a Violent Felony

US v. Ybarra, 2018 WL 1750547 (10th Cir. April 12, 2018) (unpublished): The Tenth Circuit holds that federal bank robbery by force and violence, or by intimidation (18 USC 2113(a)) is a violent felony. First, it has an element of use of force because it can be committed by intimidation. Intimidation requires conduct reasonably calculated to put another in fear or create an impression that resistance will be met by force, Thus, intimidation under the statute exists only if the defendant intentionally acted to make a person of ordinary sensibilities fear bodily harm. Second, equating fear of bodily harm with the required use of physical force is consistent with US v. Castleman, 134 S.Ct. 1405 (2014), and US v. Ontiveros, 875 F.3d 533 (10th Cir. 2017). The panel refuses to reconsider Ontiveros. Third, the Court rejects the argument that the physical force need not be directed at a person. On the contrary, according to the Court, the requirement that the taking be from the person or presence of a person confines the force to the person controlling the property. Fourth, the argument that the test for intimidation is inherently speculative was forfeited. So that argument is still alive if anyone wants to use it.

Lewd Molestation Offense Not a Crime of Violence Under the Guidelines

United States v. Gieswein, 2018 WL 1789933 (10th Cir. 4/16/18) (Okla.) - the district court wrongly decided that the defendant's prior state lewd molestation conviction was a "crime of violence." The state offense was broader than 18 U.S.C. § 2241(c) and thus not a "forcible sex offense" under U.S.S.G. § 4B1.2(a)(2) app. n.1. Consequently, the district court imposed the sentence based on a miscalculated guideline range and procedurally erred. While this error normally would not be harmless, it is in this case because the district court, based on the defendant's horrific criminal history, imposed the statutory maximum sentence and indicated that it would have imposed a higher sentence if it could have. The Tenth decides it is clear the district court would have imposed the same sentence had it not erred by treating the lewd molestation offense as a "crime of violence."

Financial Tax Docs Were Not Testimonial; Other Arguments and Sentence Enhancements Affirmed in Tax-evasion Case

U.S. v. Stegman, 873 F.3d 1215 (10/20/17) (Kan. published.) - The 10th affirms the convictions and sentence for tax evasion by a business owner raising a lot of issues. The 10th finds no Confrontation Clause problem with the admission of documents Ms. Stegman's deceased tax preparer sent to the IRS. All except the fax cover page were Ms. Stegman's financial documents, which were not testimonial and so did not present a Confrontation Clause issue. The 10th rejects Ms. Stegman's argument that the IRS destroyed exculpatory records in bad faith in violation of due process. The IRS previously audited Ms. Stegman's business and found some cash, but found no tax issues. Agents sent the file to archives where it was destroyed without the agents' knowledge. The 10th Circuit rules it was not a violation of Ms. Stegman's privilege against self-incrimination for the prosecutor to ask who owned or controlled Ms. Stegman's subpoenaed business ledgers and for the witness to say he assumed they belonged to Ms. Stegman. Under Braswell v. U.S., 487 U.S. 99 (1988), the government cannot present evidence that an individual produced subpoenaed corporation's records, but it can use those records against an individual defendant.

With respect to sentencing, the Court holds it was okay for the district court to aggregate the individual and corporate tax losses for guideline purposes under USSG § 2T1.1(c)(1)(D), even though the court acquitted Ms. Stegman on the corporate tax charges. The court acquitted only because of indictment flaws. The 10th okays the sophisticated means enhancement as well. Ms. Stegmand did more than not give information to her accountant. She created multiple limited liability corporations (LLCs), used straw purchases and bought money orders to make payments, An obstruction of justice enhancement was also warranted. Ms. Stegman directed employees to shred receipts, altered ledger entries and directed a witness to testify a certain way. It didn't matter that the document-related conduct concerned the corporation. The acts of personal and corporate tax evasion were inextricably intertwined. It also didn't matter that the witness tampering was unsuccessful. Attempts fall squarely within USSG § 3C1.1.

When in doubt, statute should be considered indivisible

United States v. Degeare, 2018 WL 1280278 (March 13, 2018) (OK): An important case to help you argue a statute is not divisible and therefore, the categorical approach applies. Generally, when we argue a prior conviction cannot be used as a sentencing enhancement predicate, we are better served by an indivisible statute and the accompanying categorical approach. Degeare can fortify that argument. The court made two very important rulings. First, a court “must be certain that the violent felony [or crime of violence] moniker necessarily applies to a particular offense before [it] can treat that offense as an ACCA predicate.” Second, and perhaps more importantly, unless the court is “certain that a statute’s alternatives are elements rather than means, the statute isn’t divisible and [the court] must eschew the modified categorical approach.” In other words, if the evidence “is merely in equipoise, the modified categorical approach won’t apply.”

In this case, the panel uses what is calls “tools” from the “Mathis toolbox” to analyze whether it can be certain that Oklahoma forcible sodomy is divisible. Those tools include - the statute, case law interpreting it, jury instructions and the charging documents. After employing these tools, the panel remained uncertain that the statute was divisible. Consequently, it held that the district court incorrectly used the modified categorical approach. Since the government conceded forcible sodomy is not a violent felony under the pure categorical approach, that offense cannot be used as an ACCA predicate.

Portion of Abrogated Opinion Survives as Law of the Case

United States v. Trent, 884 F.3d 985 (10th Cir. 2017) (OK): The panel discusses whether the law of the case doctrine defeats Trent’s appeal or whether that doctrine is inapplicable because the Supreme Court’s decision in Mathis v. United States, 136 S.Ct. 2243 (2016), created a new certainty standard to determine whether an offense qualifies for an ACCA enhancement - which the 10th Circuit had not used in Trent's direct appeal. In its prior opinion, United States v. Trent,767 F.3d 1046 (10th Cir. 2014) (Trent I), the court held Oklahoma’s conspiracy statute is divisible and using the modified categorical approach found that a conviction under this statute is a ‘serious drug offense’ as defined in the ACCA. That opinion was expressly abrogated by Mathis. However, the Trent II panel found only one of the two bases for its earlier holding was undone by Mathis. Its true elements based approach survived. That part of the opinion becomes the law of the case unless Mathis “announced a contrary decision of the law applicable to the relevant issue.” Trent argued that Mathis created an intervening change in the law because courts now are required to be certain that a provision in a criminal statute is an element and in Trent I the court was not certain that the object of a conspiracy was an element of Oklahoma’s conspiracy statute. The panel disagreed. It said that Mathis comported with the certainty standard from Taylor v. United States, 495 U.S. 575 (1990). And the approach used in Trent I, although not addressing certainty directly, was consistent with Mathis. Implicitly, the court was certain the statute was divisible because its “divisibility analysis contemplate[d] a collective assessment of case law and other materials.” Thus, Trent I’s ruling that the conspiracy statute contained alternate traditional elements and was therefore divisible, was grounded in certainty. That portion of the opinion survived Mathis, and became law of the case.

SCOTUS to address state robbery issue

In United States v. Garcia, 877 F.3d 944 (10th Cir. 2017), a Tenth Circuit panel held that a conviction for New Mexico robbery is a violent felony under the ACCA’s force clause. Garcia was incorrectly decided because it mistakenly concluded that New Mexico robbery always involves strong, violent physical force. New Mexico law demonstrates that robbery requires only the use of enough force to overcome the resistance of attachment and does not require any particular amount of resistance.

Yesterday, the United States Supreme Court in Stokeling v. United States, Supreme Court Case No. 17-5554 (Apr. 2, 2018), granted certiorari to address this question: “Whether a state robbery offense that includes ‘as an element’ the common law requirement of overcoming ‘victim resistance’ is categorically a ‘violent felony’ under the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.” Arguably, Garcia would be abrogated by a decision that comes out in favor of the defense. Therefore, it appears to be an issue worth preserving.