Wednesday, July 25, 2018

United States v. Chavez-Morales, 2018 WL 3233698 (10th Cir. July 3, 2018)(published): Mr. Chavez argued the district court’s sentencing procedure was unreasonable because it did not meaningfully consider his argument that economic opportunities motivated his illegal reentry and thereby mitigated the seriousness of his offense. He also said the court plainly erred by imposing a supervised release term without acknowledging or considering USSG § 5D1.1(c) which counsels a court not to impose supervised release when the accused is deportable and likely will be deported after his imprisonment term. The panel affirmed the district court’s procedure and sentence, but along the way made some helpful remarks.

First, it said to preserve a procedural reasonableness challenge based on the district court’s failure to consider and explain its reasons for rejecting an argument for lesser sentence, counsel must alert the court that its explanation was inadequate which ordinarily requires an objection after the court announces the sentence.

Second, (and please note these comments are made in a case where the court is reviewing an upward variance - the circuit has not set a rigorous standard for explanations when a sentence is within the guideline imprisonment range) if an accused raises a nonfrivolous argument that § 3553(a) factors warrant a sentence below the recommended imprisonment range, the appellate court must be able to discern from the record that the court considered whether the sentence imposed actually conforms in the circumstances to the statutory factors. This means the court must adequately explain the chosen sentence in light of the sentence requested by the accused. When the court fails to mention a ground which is recognized as a reason for giving a lower sentence it is likely to have committed an error. This does not mean that the court must accept the argument, but if it has some merit ordinarily it will deserve explicit comment. Here, because Chavez argued that economic incentives in the US motivated him to enter illegally which lessened the seriousness of his offense, “the district court needed to address the argument before imposing an above-Guidelines sentence.” The court did not err because it adequately addressed Chavez’s argument.

Third, a district court errs when it does not acknowledge or consider the guidance of a relevant guideline and its accompanying commentary. Here, the court erred because it did not acknowledge or consider USSG § 5D1.1(c)’s recommendation that ordinarily a court should not impose supervised release in reentry cases. However, since supervision can be imposed if it would provide “an added measure of deterrence”, the sentence was not reversed because the panel found “threads of a deterrence rationale” in the district court’s explanation for the term. One final comment, although the panel finds error it fails to mention that § 5D1.1's application note 5 says “added measure of deterrence and protection [of the public].” One may argue then that supervised release in a reentry case is not warranted unless the court can demonstrate that it is necessary to address both concerns.

Tuesday, July 24, 2018

United States v. Young, 893 F.3d 777 (10th Cir. 2018): The panel finds the guidelines reckless endangerment enhancement applies even when an accused makes verbal threats against an officer while fleeing and when he has stopped fleeing but is in a standoff with police. Young’s verbal threats created a dangerous situation for the police when they pursued him because he was armed and had expressed an intention to shoot if they took action. Besides “if the police were to shoot, they could have accidentally shot a fellow police officer.” Also, during flight is construed broadly and includes conduct while resisting arrest. Young was “resisting arrest during the standoff, disobeying police commands to exit his vehicle.” (NOTE for appellate types: the panel reviewed the issue de novo because Young didn’t challenge the district court’s factual findings, he argued instead that the facts are insufficient as a matter of law to warrant the enhancement.)

United States v. Ibanez, 893 F.3d 1218 (10th Cir. 2018): Because Ibanez challenged the substantive reasonableness of his within guideline sentence, to rebut the presumption of reasonableness the 10th Circuit attaches to that sentence, he was required to show “the statutory sentencing factors render the sentence unreasonable.” Ibanez argued only that the USSG § 2K2.1 (a)(4)(B), the enhancement for possession of a semiautomatic weapon by a prohibited person, was unreasonable. Because Congress allowed the ban on semiautomatic assault weapons to lapse - the statute on which the enhancement was based - there no longer was a sound basis for the guideline enhancement. The panel disagreed for two reasons. First, the reasonableness of the guideline is irrelevant because the district court had the discretion not to apply it. Second, according to the sentencing commission’s own policy judgment, the enhancement was necessary because the public is endangered when prohibited persons possess large-capacity magazines.

United States v. Hull, 893 F.3d 1221 (10th Cir. 2018): The panel finds that a standard supervised release condition in which the accused is required to notify third parties “of risks he may pose to them” is not unconstitutionally vague, an unconstitutional delegation of judicial authority, or an unlawful occupational restriction. The condition is not unconstitutionally vague because the district court said the risk would be assessed in the context of Hull’s prior convictions for home invasion robberies and bank robberies, i.e when others “may be at risk for financial or physical harm.” (The panel questioned whether, after Beckles, one can challenge on due process grounds a condition derived from the guidelines.) The condition did not unconstitutionally delegate judicial authority to the probation office since it is specific to the circumstances in which it applies and the probation department is not deciding the nature of extent of Hull’s punishment. Finally, the condition is not an unlawful occupational restriction because unlike the conditions struck in Souser and Mike, it does not require “to notify and all employers of his convictions.”

Colorado first-degree trespass not a crime of moral turpitude; Venzor-Granillo overruled

Lujan-Jimenez v. Sessions, 839 F.3d 704 (10th Cir. 2018): Lujan appealed a BIA final order of removal. The panel found the BIA incorrectly concluded Lujan’s Colorado conviction for first degree criminal trespass was a crime of moral turpitude. That offense can be committed by unlawfully entering a “motor vehicle with intent to commit a crime therein.” The BIA held that the particular crime intended is an element of the offense and therefore, the statute was divisible. The panel disagreed, it said that according to the Colorado Supreme Court, an information charging only that a defendant intended to commit “a crime” contains “all essential elements of the crime of first degree criminal trespass.” It added that in other Colorado cases involving similar crimes, juries have been instructed as to alternative ulterior offenses (e.g. either the accused intended to commit theft or arson). The panel concluded that because the crime intended was a means by which the trespass offense is committed, the Colorado statute was not divisible as to the particular ulterior offense. It also said that a case which held the opposite, United States v. Venzor-Granillo, 668 F.3d 1224 (10th Cir. 2012), cannot be reconciled with the approach to divisibility set forth in Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) and is therefore no longer good law. Colorado first degree criminal trespass sweeps more broadly that the definition of a crime involving moral turpitude.

Monday, July 23, 2018

Underwood v. Royal, 2018 WL 3215764 (10th Cir. 7/2/18) (Okla.) - affirmance of habeas denial on six grounds in Okla. death penalty murder case.
1. There was no ineffective assistance of trial counsel in failing to present expert testimony on rebuttal regarding the timing of the victim's death. The state court concluded that presentation of such testimony might have done more harm than good. The Tenth decides that the Okla. court did not unreasonably apply Strickland in determining that trial counsel's strategy was at least reasonable.
2. The evidence discussed by the prosecutor at trial that Mr. Underwood argued amounted to prosecutorial misconduct did not unfairly overshadow other depraved things that Mr. Underwood freely admitted and thus did not render his trial so fundamentally unfair as to deny him due process.
3. The state court did not reach a decision contrary to or unreasonably applying Supreme Court law or unreasonably determining the facts with respect to the jury instruction on mitigating circumstances challenged by Mr. Underwood.
4. The concededly unconstitutional admission of the victim's parents' impact statements and recommendations for imposition of the death penalty at his trial was not structural error. The offending statements did not have a substantial and injurious effect or influence on the jury verdict because they were relatively brief and emotionally restrained; the aggravating case was relatively strong; and the mitigating case was insufficient to overcome the aggravating evidence.
5. The Okla. court did not decide contrary to clearly established Supreme Court law or unreasonably apply it by deciding that it was not reversible error to fail to instruct the jury that it must find the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt .
6. The cumulative effect of the alleged errors on the jury's sentencing determination did not entitle him to habeas relief.
U.S. v. Thompson, 72 F. App'x 492 (1/9/18) (N.M.) (unpub'd) - The 10th holds New Mexico attempts are "attempts" under the ACCA's elements clause. Mr. Thompson argued New Mexico attempt includes just "slight acts," not the substantial steps required by the ACCA. The 10th finds New Mexico requires an attempt to be more than preparation, not necessarily the last act before completion, but at least the first or some subsequent step in a direct movement toward the offense's commission. That's good enough for the ACCA, the 10th holds.

U.S. v. Robinson, 720 F. App'x 946 (1/9/18) (Okl.) (unpub'd) - Interesting concurrence by Judge Holmes on what is generic burglary. The majority rejects Mr. Robinson's Johnson challenge to counting his burglary as an ACCA enumerated offense based on U.S. v. Snyder, 871 F.3d 1122 (10th Cir. 2017). The majority uses the modified categorical approach that it couldn't use now under Mathis and finds that back when Mr. Robinson was sentenced he was convicted of burglarizing a house, not a vehicle being used as a residence. So his ACCA sentence that would be unconstitutional now is okay because, due to the application of incorrect law. It wasn't based on the residual clause at the time it was imposed. Judge Holmes opines that Shepard v. United States, 544 U.S. 13 (2005), has abrogated U.S. v. Spring, 80 F.3d 1450 (10th Cir. 1996), which held a motor vehicle used as a home was a "structure" under the generic burglary definition, even though Taylor said that a motor vehicle was not a generic structure. Judge Holmes thought Shepard's description of a generic burglary as unlawful entry into "an enclosed space, not a boat or motor vehicle" scuttled Spring. The Supremes will decide the question next term in U.S. v. Sims and U. S. v. Stitt.

Friday, July 20, 2018

U.S. v. Arnold, 878 F.3d 940 (12/27/17) (Okl.) - The 10th upholds a forfeiture order. The 10th holds it was okay under Fed. R. Crim. P. 32.2 for the district court to amend a preliminary general forfeiture order once the amount of the money judgment was calculated. There were ongoing disputes regarding restitution that made the forfeiture amount uncertain until the court resolved the disputes. The 10th finds the indictment gave Mr. Arnold sufficient notice of a possible forfeiture. The indictment doesn't have to allege an approximate amount, a method of computation or what are the substitute assets involved. The 10th also concludes the statutes mandating restitution and forfeiture do not allow a defendant's payments towards one to offset the amount owed to the other.

Farrell v. Montoya, 878 F.3d 933 (12/27/17) (N.M.) - The 10th rules in favor of an officer in a § 1983 civil rights case regarding an incident that acquired a lot of notoriety in New Mexico where, near Taos, an officer fired three shots at a car with five kids in it.. The 10th holds the Farrells were not seized when the officer fired shots at them because when they fled they were not submitting to the officers. A momentary pause from fleeing would not constitute a seizure. A person must really submit to police authority before there's a seizure. The 10th rejects the Farrells' argument that, at the time of the shots, there was an ongoing seizure because at first the mother submitted to the officer making a traffic stop. Calling 911 and looking for a police station while fleeing did not a seizure make. The Farrells' subjective intentions are irrelevant, the 10th rules.

Jury improperly instructed regarding drug quantity findings

U.S. v. Johnson, 878 F.3d 925 (12/22/17) (Kan.) - The 10th finds a reversible plain Alleyne error. The district court instructed the jurors on drug quantity, but did not tell them they had to find at least 280 grams of cocaine base beyond a reasonable doubt. Preponderance was all the court required. The sentence to a 10-year mandatory minimum was plain error. It was reversible because, although the government presented sufficient evidence of Ms. Johnson's connection to the requisite quantity, that evidence wasn't overwhelming. The CI never saw Ms. Johnson sell or cook crack, or handle lots of money, she didn't drive co-conspirators to the drug transactions that made up the bulk of the quantity, no drug-related stuff was found in her home, discussed quantity amounts were often inflated; and coded language in wiretapped phone calls was subject to wildly different interpretations.

The 10th does find sufficient evidence to support the quantity calculation for guideline purposes because of the evidence that Ms. Johnson was a member of the conspiracy during the period the CI bought drugs from co-conspirators. And the 10th says it was not error to employ the preponderance-of-the-evidence standard to the question whether the wire-tapped calls were initiated in the territorial jurisdiction of the state court.

unpublished decisions

U.S. v. Mobley, 720 F. App'x 441 (12/19/17) (Kan.) (unpub'd) - The 10th reverses a detention order because neither the district court nor the magistrate judge made sufficient findings under § 3142. The government charged Ms. Mobley with international parental kidnaping. The magistrate judge just checked a box that no combination of conditions will assure the defendant's appearance. The 10th faults the judge for providing "very little supporting analysis," having no discussion of why the proposed release conditions couldn't assure Ms. Mobley's appearance and making "scattered, cursory" references to the § 3142(g) factors The judge's findings were also lacking because the judge didn't mention Ms. Mobley's affirmative defense that she was fleeing domestic violence, which, the 10th says, has a potential effect on the weight of evidence, a relevant factor. The 10th rules the district court's analysis was incomplete because it "only" relied on the nature of the offense, Ms. Mobley's history of noncompliance with court orders and the court's fear she would flee again. The 10th criticizes the court for not considering whether any conditions would assure an appearance where Ms. Mobley offered to submit to electronic monitoring, have her parents pay a bond and turn in all her passports. The 10th was also unhappy that the district court didn't consider Ms. Mobley's affirmative defense, despite documentary evidence indicating she did endure domestic violence. The 10th isn't impressed with the court referring to Ms. Mobley's flight as "vigilante justice.". The 10th remands for findings or pretrial release on conditions.

U.S. v. Ingram, 720 F. App'x 461 (12/22/17) (okl.) (unpub'd) - The 10th holds the good-faith exception salvages a search based on a warrant that provided "only a tenuous nexus" between drug activity and Mr. Ingram's home. There was ample evidence Mr. Ingram dealt drugs. This, combined with the assertion that a high-level drug trafficker probably keeps incriminating records at his home, was enough for good faith. The 10th notes that there was no assertion that illegal drugs were in Mr. Ingram's home. It cautions that it's not announcing a "broad rule making a suspected drug dealer's house fair game for searches absent evidence of contraband there." But here the warrant affidavit wasn't so devoid of factual support to render police reliance on the judge's warrant issuance to be objectively unreasonable.

U.S. v. Etenyi, 720 F. App'x 445 (Kan.) (unpub'd) - The 10th affirms Mr. Etenyi's identity-fraud-related offenses. The 10th holds that to prove Mr. Etenyi produced a state-issued identification document without lawful authority in violation of 18 U.S.C. § 1028(a)(1) it need not prove he obtained the driver's license from someone who had criminal intent. In this case, the state employee who issued the license was an innocent person duped by Mr. Etenyi. A person cannot insulate himself from punishment by manipulating innocent third parties to perform acts on his behalf that would be illegal if he performed them. The 10th also rules that Mr. Etenyi was guilty of violating the aggravated Identity fraud statute even though his brother willingly gave him an employment identification card to get the driver's license.

Search of car's trunk was ok; restriction on cross examination of witness was harmless error

U.S. v. Mirabal, 876 F.3d 1029 (11/29/17) (N.M.) (published) - The 10th affirms Mr. Mirabal's convictions rejecting several challenges, including regarding a car search and cross-examination restriction. The 10th finds a car search to be reasonable in the following circumstances. Officers concededly had probable cause to search for an assault rifle, which officers thought they saw Mr. Mirabal put in his car trunk. An officer stopped the car for speeding. He looked in the trunk and saw a long speaker box that he testified blocked his view of the back of the trunk. So the officer entered the back seat, pulled an arm rest down to look in the back of the trunk and found cocaine. An assault rifle was nowhere to be found. The 10th acknowledges the officer could only look where a rifle could be hidden.

The 10th assumes it was a Confrontation Clause violation to prevent cross of a cooperating witness about his plea agreement and how much he expected his sentence to be reduced because of his testimony, but finds any error to be harmless beyond a reasonable doubt. The witness's testimony was "extensive and important," the 10th admits. But it was corroborated by other witnesses. On the other hand, the witness's influence was still "substantial" because he was intimately involved in Mr. Mirabal's enterprise. On the other, other hand, the prosecution's overall case was strong: an "enormous array of wiretapped calls" combined with officers observing Mr. Mirabal meeting with buyers at the arranged times. Plus, the government strongly countered Mr. Mirabal's defense that he was talking about marijuana wax, not cocaine. And "most critically," the 10th says, the witness was extensively crossed on his reliability and motive, "sullying" his credibility as much as a fuller cross would have done. Mr. Mirabal was able to cross about the witness's drug abuse history, criminal history, his inconsistent statements and that, because he was testifying for the government, he expected a lower sentence without a career offender enhancement. Plus a jury instruction told the jury to assess the witness's testimony with caution in light of all the credibility problems. So harmless.

The 10th holds there was sufficient evidence for: (1) crack conspiracy [there was evidence Mr. Mirabal arranged to manufacture and sell crack]; possession with intent to distribute powder cocaine [cocaine was found in Mr. Mirabal's car and there was evidence he was transporting the cocaine to sell it]; firearm possession [firearm was found in Mr. Mirabal's home where he lived alone]; and body armor possession [body armor was found in Mr. Mirabal's storage locker]. Mr. Mirabal didn't show bad faith destruction of drugs where authorities destroyed the drugs based on an existing policy and filed a notice announcing the destruction.

Defendant's Confrontation Rights Were Not Violated When State Introduced Depo of Witness at Trial

Acosta v. Raemisch, 877 F.3d 918 (12/15/17) (Col.) - The 10th denies § 2254 habeas relief, rejecting arguments that the state didn't do enough to produce a witness for Confrontation Clause purposes and that the denial of Mr. Acosta's right to counsel was structural error. The only eyewitness to the killing of the victim was difficult to track down. She kept disappearing whenever she was released from custody. In light of that fact, she was deposed. After not appearing for a hearing, she was arrested and kept in custody so she could testify at Mr. Acosta's co-defendant's trial. The jury convicted the co-defendant of manslaughter. The eyewitness was released after Mr. Acosta's trial was delayed due to his counsel's conflict and the need to get new counsel. At a hearing without counsel, Mr. Acosta waived his right to a speedy trial and at a later hearing outside of his and his counsel's presence, the eyewitness was released. True to form, the eyewitness disappeared. Unbeknownst to the prosecution, she was arrested by local officers on a different matter on the same day her deposition was introduced into evidence at Mr. Acosta's trial. The jury convicted Mr. Acosta of first-degree murder.

The 10th holds it was reasonable for the state courts to find the state tried enough to get the eyewitness to testify at Mr. Acosta's trial where the state investigators: checked the eyewitness's last known addresses; visited the post office to see if the eyewitness filed a change of address form [not likely]; got information the eyewitness had no permanent address, lived in the streets and was hiding to avoid testifying; spoke twice a week with the eyewitness's cooperative grandfather; enlisted the aid of a unit that looked for the eyewitness on the streets in areas she was known to frequent; and searched for the eyewitness along a certain street she had frequented. The 10th says it doesn't matter whether the trial court should have done a better job of keeping tabs on the eyewitness. What mattered is whether the prosecution engaged in a good-faith effort to produce her for trial. Even though there were other things the state could have done, like check arrest records. The Sixth Amendment doesn't require the prosecution to exhaust every possible means of producing a witness. So the state's finding of law that there was good faith was reasonable. The admission of the deposition didn't violate the Confrontation Clause.

The 10th assumes Mr. Acosta's right to counsel was violated at the hearings where he waived his speedy trial rights and where the eyewitness was released. The error was not structural, the 10th rules. There is such an error only when it "infects the entire trial process," the 10th says. Here Mr. Acosta had counsel all the time after those two hearings. The counsel denial didn't contaminate the rest of the proceedings, the 10th holds, and so that's good enough to avoid habeas relief. The 10th is okay with the trial court's finding that Mr. Acosta knowingly waived his right to a speedy trial, even though he did so without counsel. The 10th also sees no legitimate complaint that the lack of counsel caused the loss of the eyewitness's testimony. There was no Confrontation Clause violation. The 10th is convinced the error had no impact on the verdict.

KS Aggravated Assault with a Deadly Weapon is a "Crime of Violence"

U.S. v. Benton, 876 F.3d 1260 (12/8/17) (Kan.) - Kansas aggravated assault with a deadly weapon satisfies the "crime of violence" definition in USSG § 4B1.2(a). The offense's elements are intentionally placing another person in reasonable apprehension of immediate bodily harm with a deadly weapon. First, the 10th relies on U.S. v. Ontiveros, 875 F.3d 533 (10th Cir. 2017), which relied on U.S. v. Castleman, 134 S. Ct. 1405 (2014), to hold it doesn't matter if the threatened bodily harm comes indirectly, e.g., through poison, or directly. Second, the 10th rejects Mr. Benton's argument that the crime could be committed with a harmless object that isn't capable of using enough force to be capable of causing physical pain or injury. The 10th says the definition of a deadly weapon thwarts Mr. Benton's argument. A deadly weapon is an instrument which, from the manner in which it is used, is likely to produce death or serious bodily injury. So, the 10th concludes, because a threat of death or serious bodily injury is at least force capable of causing physical pain or injury, the force required to convict someone of Kansas aggravated assault with a deadly weapon is violent physical force.

Defense win: Good faith exception does not save search pursuant to overbroad warrant

U.S. v. Dunn, 719 F. App'x 746 (12/12/17) (Col.) (per curiam) (unpub'd) - A really nice lack-of-warrant-particularity defense victory against the good-faith demons, courtesy of Judges Bacharach and O'Brien [with Judge Gorsuch on the panel but not voting]. The warrant to search Mr. Dunn's apartment said "the items to be searched for and seized include but are not limited to" a list of 9 items related to a stabbing. The 10th concludes the warrant authorized a search for everything in the apartment for any reason. The 10th finds it significant that the "not limited to" language applied to all the evidence categories. The affidavit didn't cure the lack of particularity because the affidavit wasn't attached to the warrant and the warrant didn't incorporate the affidavit by reference, although it did say an officer filed an affidavit and that the warrant's authorization is on the basis of the affidavit's information. The warrant's bad part couldn't be severed from the rest of the warrant because the invalid part was so broad and invasive it contaminated the whole warrant. Even though officers didn't search beyond what they would have been allowed to search under a valid warrant, the good faith exception didn't apply because the defect was so obvious, as a less broad defect was in Cassady v. Goering, 567 F.3d 628, 635 (10th Cir. 2009). The exclusionary rule's purpose is served by "reminding officers the particularity requirement is more than a technicality."

Thursday, July 19, 2018

OK first-degree manslaughter not a serious violent felony

United States v. Leaverton, 2018 WL 3421620 (10th Cir. 7/16/18) (Okla.) (published) - Oklahoma first degree manslaughter is not a "serious violent felony" under the three-strikes provision of 18 U.S.C. § 3559(c), Although the state statute was divisible, the district court improperly relied on a minute entry from the state court docket sheet to determine the statutory subsection Leaverton was convicted under. This was disallowed by United States v. Abeyta, 877 F.3d 935, 942 (10th Cir. 2017), because Shepard documents are limited to conclusive records made or used in adjudicating guilt, which does not include docket sheets. And while manslaughter is an enumerated offense under § 3559(c)(2)(F)(i), Oklahoma manslaughter is not equivalent to generic manslaughter. The Oklahoma offense is broader than the Model Penal Code definition of manslaughter because the state offense does not require intent to kill. The government did not argue in the district court that Oklahoma manslaughter qualifies under the § 3559(c)(2)(F)(ii) elements clause, so the Tenth declines to consider that argument on appeal.

Tuesday, July 03, 2018

Despite serious delay, defendant could not prove sufficient prejudice so no constitutional speedy trial violation

United States v. Frias, --- F.3d ---, 2018 WL 3150304 (10th Cir. June 28, 2018) -- Ms. Frias was convicted after a trial of felon in possession of a firearm. On appeal, she contended her speedy trial rights were violated, and the trial court abused its discretion in responding to a jury question and in instructing the jury on the government's burden of proof.

Speedy trial issue: Ms. Frias was wanted in connection with a murder. On October 13, 2014, she was arrested by Denver police on the warrant. She fled in her vehicle, crashed it, and then fled. After she was caught, a revolver and two purses were found in the vehicle. One purse contained bullets that fit the revolver and items belonging to Ms. Frias. She was jailed on various state charges. While in jail, on December 15, 2014, she was federally indicted on the 922(g) charge, but the indictment was sealed and Ms. Frias was not told about it. The state did its thing and she pled guilty to one count of accessory to murder on September 24, 2015. Her plea agreement provided that her state sentence would run concurrently with any potential federal sentence and the district attorney would reconsider if she received a consecutive sentence. She was sentenced to four years. On December 19, 2016, two years after the federal indictment and nine months after she was sentenced in state court, the federal government took custody of Ms. Frias and she appeared in federal court for the first time. She moved to dismiss, contending her Sixth Amendment right to a speedy trial had been violated. The district court denied the motion, and her later renewed motions, because Ms. Frias had not been prejudiced. The Tenth Circuit agreed. Three Barker v. Wingo factors weighed in favor of Ms. Frias. The delay was presumptively prejudicial. The government's reasons for the initial delay, from the time of federal indictment to the time the state proceedings concluded, was acceptable, but the 9-month delay after Ms. Frias's sentencing was not. Regarding her assertion of speedy trial rights, this factor slightly favored Ms. Frias because she did not know of the indictment, merely of the possibility of a federal charge. However, the Tenth Circuit also concluded she failed to show prejudice. She would have been incarcerated anyway, and did not demonstrate any specific harm. Finally, she did not show her defense was impaired. The passenger's testimony at trial indicated her memory was clear regarding the events on the day she was arrested, and defense counsel's examination did not bring out any particular deficits. Ms. Frias also pointed out she lost her 18-week window in which she could ask the state court to modify her sentence. The Court said that courts have not held that a federal case must proceed promptly so that a state court can potentially modify a sentence. So even though three factors favored Ms. Frias, on balance, there was no constitutional violation.

Jury question: The district court did not abuse its discretion in referring the jury to the instructions, which correctly stated the law.

Burden of proof: Ms. Frias raised the issue only to preserve it for a petition for certiorari.