Thursday, June 28, 2018

Multi-state Cooperation Creates Reasonable Suspicion for Detention at Airport

United States v. Latorre, Docket No. 17-8066 (10th Cir. June 21, 2018)(published): A law enforcement officer in Wyoming had reasonable suspicion for an investigative detention of Mr. Latorre at an airport based on the fact that Officer Weidler, an Illinois state trooper, had reasonable suspicion of criminal activity. Weidler had noticed the defendant's small plane flying without a transponder. He investigated, and learned the plane was ostensibly being flown to New York and the pilot intended to visit family. Weidler learned the plane was registered to Latorre and he had a criminal history, including drug convictions. The same plane then left New York just a day after landing there. The plane was tracked to Evanston, Wyoming, where a local officer was dispatched to the airport to stall the aircraft until a Homeland Security agent could arrive. Ultimately, Latorre gave consent to search the plane and the drugs were found. The Court held that Weidler had reasonable suspicion to investigate Latorre based on the unusual and unsafe flying behavior because of the lack of the transponder, cross-country travel and quick turn-around, and history of drug trafficking. Furthermore, the collective knowledge doctrine was a basis to impute this reasonable suspicion to Officer Mathson. Finally, Latorre's consent was freely and voluntarily given. Officer Mathson had displayed his gun to Latorre, but never touched it. Later, Latorre talked with two other agents in the public lobby. The agents wore street clothes and did not display their weapons. The conversation was calm. He was not handcuffed. The documents were on a chair. There was no evidence he was coerced.

Doctor Defendant Wins Reversal Based on Improper Amendment of the Indictment; Important Discussion of Expert Testimony

US v. Miller, --- F.3d ---, US v. Miller, No. 16-1231 (10th Cir. June 6, 2018) (published) - A must-read case if you have a battle of the doctor experts when a doctor is charged with distributing a controlled substance outside the usual course of medical treatment in violation of 21 U.S.C. § 841(a). Defendant was charged with a bunch of counts, including health care fraud, money laundering, distributing a controlled substance, and false statement. He was convicted of seven counts of distributing a controlled substance, and one count of making a false statement to the DEA. The Court upheld the district court's admission of the government's expert's testimony; rejected Miller's argument that several counts were duplicitous because they included at least two controlled substances that were prescribed on the same day to the same patient; reversed Miller's conviction on the false-statement count because the indictment was constructively amended; and found that Miller's argument that his sentence was procedurally unreasonable was moot because he had completed his sentence.

1. Battle of the Experts. The Court went over the standards for finding a doctor criminally liable under § 841(a), which is that a medical practitioner can violate the statute "if he acts without a legitimate medical purpose or outside the usual course of medical practice."

2. Duplicity. Four drug-distribution counts were not duplicitous even though they charged distribution of multiple drugs to a single patient on the same day.

3. Improper Amendment. The Court, on plain error review, reverses the defendant's conviction for making a false statement. Basically, one false statement was alleged in the indictment, evidence of that statement and another statement were presented to the jury, and the jury instructions failed to narrow the basis for the false-statement count back to the one alleged in the indictment.

Miller also challenged the conviction on the grounds that his statement was not false as a matter of law. The alleged false statement was that he answered "no" to a question on his DEA application that asked if he had "ever surrendered (for cause) or had a state professional license or controlled substance registration revoked, suspended, denied, restricted or placed on probation." One month prior to answering this question, Miller's state medical license had been suspended. Ten days prior, the state medical board had ordered the suspension "vacated." After much discussion of the meaning of the word "vacate," the Tenth Circuit agrees with the district court that, in this case at least and under Colorado law, the district court did not err in ruling that Defendant's answer on the application was false as a matter of law because his license had been suspended and the vacatur of the suspension order did not remove it from historical existence. However, Miller was free to argue, as he did at trial, that he honestly, though mistakenly, thought his answer was true based on the vacatur.

Thursday, June 07, 2018

Opinion Includes Useful Language for Limiting Government's Prior Bad Acts Evidence

United States v. Tapaha, 2018 WL 2647028 (June 5, 2018) (NM): Tapaha was convicted of assaulting her boyfriend with a truck. On appeal she argued that the district court violated her constitutional rights to confrontation and to present a defense. Three witnesses would have detailed the history of abuse Tapaha suffered at the hands of her boyfriend. This history also would have been described during cross-examination of the boyfriend. This evidence, Tapaha she said, was essential to her claim that her fear of harm was reasonable and that she acted in self-defense. The panel rejected Tapaha’s arguments. But its conclusions may be beneficial to you in future cases.

First, the panel found the district court properly excluded some of the boyfriend’s testimony because it was speculative. He admitted he was too drunk to remember being hit or to know how much of a threat he was to Tapaha. Citing Fed.R.Evid. 602 and 701, the panel said that when a witness “lacks any recollection of the incident”, testimony about the incident or the accused’s state of mind is irrelevant. This is so because that testimony is not based on personal knowledge. In a case where the complaining witness was too intoxicated to remember anything, this ruling can help you restrict the testimony.

Second, the panel said the testimony of the three witnesses would have been cumulative to other evidence Tapaha presented. Tapaha offered it as reverse Fed.R.Evid. 404(b) evidence and as proof of a specific character trait allowed by Rule 405. The panel found the testimony “would not have added anything significant to the testimony already admitted.” Additionally, this evidence would not have bolstered Tapaha’s “weak” self-defense claim. When the government tries to present numerous incidents of misconduct using Fed.R.Evid. 404(b) or 405, the panel’s ruling here may help you limit that evidence.

Government Failed to Support Sentencing Enhancement for "Straw" Gun Buyer

United States v. Francis, 2018 WL 2646755 (June 5, 2018) (CO): The panel finds the district court improperly applied USSG’s § 2K2.1(b)(5) firearms trafficking enhancement. Application note 13 explains that a court may impose a 4 level increase when the accused knew or had reason to believe the person receiving the firearms had a prior felony conviction for a crime of violence or controlled substance offense. Here, Francis was the straw purchaser for an ATF informant with a felony. The informant told Francis he had a “bullshit felony” conviction and that he had a “stereotypical background.” The panel said these statements “suggested the CI did not have a felony conviction for a crime of violence.” Thus, the government did not prove that the enhancement should apply. However, the panel found at trial the government established beyond a reasonable doubt that the CI was an actual felon.
The panel also held that the district court plainly erred in ordering sex-offender treatment as a special condition of supervised release. Contrary to circuit precedent, the district court did not provide a “generalized statement that would justify” that treatment. Regardless, Francis was unable to show this error affected his substantial rights. The record demonstrated the court had a reason to order treatment. Francis had recently been convicted of a sex offense and failed to complete the court-ordered sex offender treatment program.

Tuesday, June 05, 2018

Vacancy Announcements

The Federal Public Defender for the District of New Mexico has openings in the Las Cruces Branch Office for two Assistant Federal Public Defenders, one legal assistant, and one interpreter. The announcements, instructions for applying, and full descriptions are available on the office website, at