Wednesday, February 20, 2019

Money-laundering convictions reversed for insufficient evidence; other claims rejected

U.S. v. Christy, 17-3122 (Feb. 15, 2019) (D. Kan.): Ms. Christy was charged with one count of bank embezzlement, six counts of making false bank entries, six counts of failing to report taxable income, and 10 counts of money laundering. A jury convicted Ms. Christy on all charges except four money-laundering counts.

On appeal Ms. Christy argued that (1) cumulative prosecutorial misconduct violated her due process rights, (2) the evidence was insufficient for her money-laundering convictions, and (3) the jury instructions improperly omitted a materiality element for the false-bank-entry charges. The Tenth Circuit (1) found that Ms. Christy had not shown the prosecutor’s comments influenced the verdict, (2) reversed Ms. Christy’s money-laundering convictions because of insufficient evidence of intent; and (3) affirmed Ms. Christy’s false-bank-entry convictions because, even assuming materiality is an implied element of 18 U.S.C. § 1005, its omission from the jury instruction was harmless error. Remanded with instructions to vacate the money-laundering convictions and resentence Ms. Christy.

Friday, February 08, 2019

OK Assault and Battery on a Law Enforcement Officer is not a violent felony

United States v. Johnson, 911 F.3d 1062 (10th Cir. 2018) (OK): Using the categorical approach, the court finds Oklahoma assault and battery on a police officer is not a violent felony as defined by the force clause. The state statute can be violated through either a battery on a law enforcement officer or an assault and battery on the officer. The panel said because battery in Oklahoma can be committed with only the slightest touch it does not require violent force capable of causing physical pain or injury. Following its earlier decision, United States v. Degeare, 884 F. 3d 1241, 1248 (10th Cir. 2018), it also decides that after reviewing state court opinions, the text of the statute and the record of conviction, it cannot determine for certain whether the statutory alternatives are means or elements and so it must treat the statute as indivisible.

Government Could Enforce Appellate Waiver in Appeal of Denial of 2255 Motion

United States v. Lopez-Aguilar, 912 F.3d 1327 (10th Cir. 2019) (NM): When Lopez appealed the denial of his Johnson II based 28 U.S.C. § 2255 petition to correct his sentence, the government moved to enforce his plea agreement’s appellate waiver. The panel disagreed with Lopez that the government had waived this argument by not making it in the district court. In § 2255 proceedings, a district court can either summarily dismiss the motion or order a response. Here, the district court did not order the government to respond, so it could raise the waiver for the first time on appeal.

Illegal Seizure of Defendant's Home Invalidated Later Consent to Search

United States v. Shrum, 908 F.3d 1219 (10th Cir. 2018) (KS): 10th Circuit reverses the denial of a suppression motion in a firearms case. Believing his 30 year old wife had overdosed, Shrum called 911. Police and paramedics went to the house and took her to the hospital where she was pronounced dead. Police later told Shrum the coroner would need the medication his wife was taking. Shrum said he would go to house and get it. Police accompanied Shrum to the house. When they arrived Shrum was not allowed inside. Police asked Shrum for consent to search the house for the medication. He agreed. Inside the investigator found firearms and ammunition.

The panel’s analysis focused on a person’s possessory interests in property: a Fourth Amendment seizure occurs when there is some meaningful government interference with an individual’s possessory interests in property. It held Shrum’s consent was invalid because it was obtained as a result of the initial illegal seizure of his home. The panel said that without valid consent the warrantless seizure of Shrum’s home, even if there was probable cause, is per se unreasonable. Since the government did not suggest there were exigent circumstances, the officer had no reason to seize and then enter the home. Shrum demonstrated a casual connection between the illegal seizure and the evidence taken from the home because ‘but for’ the investigator’s illegal entry into the home, he would have never seen the firearms and ammunition used for the federal prosecution.

Vehicle Stop Was Not Supported by Particularized Suspicion

United States v. Martinez, 910 F.3d 1309 (10th Cir. 2018) (UT): The court finds the government failed to offer a specific, articuable and objective factual basis to believe that Martinez was engaged in criminal activity. Too often courts accept the government's attenuated inferences as reasonable suspicion. Martinez is a good case to cite because the court disassembles the government's proposed inferences and thereby rejects its suggestion the inferences established reasonable suspicion. It explained that broad inferences derived from estimates and general descriptions do not prove the officer had a reasonable suspicion to detain the person. At best, the officer who stopped Martinez on the highway had an unparticularized suspicion or hunch.

A police dispatcher reported a bank robbery in Winslow, Arizona. One male suspect wore a Bud Light Hat and the other seen running from the bank wore a blue and white checkered shirt and blue jeans. Another report was issued describing suspicious activity in Flagstaff that occurred before the Winslow robbery. There, a white Cadillac was seen outside a bank earlier in the morning. The driver was said to a Native American man wearing a light blue checkered hoodie and a Bud Light hat. After this second bulletin was sent, Officer Phillips was driving west on I-40. He remembered from one of the bulletins that the driver was wearing glasses but he could not remember which one. Fifteen minutes after he heard the second report, he saw a white Cadillac traveling east on I-40. According to him, white Cadillacs are a rare sight on that stretch of I-40. He turned around and when he pulled up next to the car he had difficulty seeing through the heavily tinted windows but was able to make out from the driver’s outline that he was wearing glasses and "had facial features that led him to believe the driver was Native American male."

Soon afterwards, the officer pulled the car over. He said he did so because he believed it was involved in the Winslow robbery. He conceded the driver had not committed any traffic violations.
The officer told the driver to get out. His earlier observations were partially inaccurate: the driver was a woman, who might not have been Native American - he could not identify her nationality or ethnicity - but she was wearing glasses. He smelled the odor of marijuana coming from the car. Martinez was in the front passenger seat and he detained both of them. The officer searched the car and seized evidence from an unrelated bank robbery in Utah.

The court emphasized for this stop to be reasonable, the officer had to have a particularized and objective basis for detaining Martinez. The district court used four ‘facts’ to justify the detention, none of which persuaded the panel. See the opinion for the Circuit’s dissection of the district court’s findings and reasoning.

False Claims Act Conviction Supported by Sufficient Evidence

United States v. Glaub, 910 F.3d 1334 (10th Cir. 2018) (CO): Glaub “purchased” a $73k Corvette by sending the purchase order to the government. (He sent other bills as well.) He argued that he had a First Amendment right to ‘petition’ the government and his intent was not fraudulent because he believed the government should pay a citizen’s debt. The panel wasn’t convinced. It affirmed his convictions for violating 18 U.S.C. § 287, the False Claims Act. It was for the jury to decide if Glaub had the requisite criminal intent when he sent his bills to the Dept. of Agriculture. The panel said the First Amendment provides no protection for knowingly fraudulent or frivolous claims. Still, the district court instructed the jury on Glaub’s theory of defense - that his political associations and beliefs colored his perceptions and therefore, he did not have the intent to defraud the government or to submit a false or fraudulent claim. Evidently, the jury believed the government’s evidence was sufficient. The Circuit agreed.

Hobbs Act Robbery Is Categorically a Crime of Violence

U.S. v. Jefferson, 17-3150, 911 F.3d 1290 (Dec. 28, 2018) (D. Kan.): Mr. Jefferson was convicted of five counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), (b)(1), and three counts of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). On appeal, Mr. Jefferson argued Hobbs Act robbery was not a “crime of violence” because § 924(c)(3)(A) required the predicate offense to have a force element and Hobbs Act robbery had only a force means, and the jury should have decided whether Hobbs Act robbery qualified as a “crime of violence.” The Tenth Circuit held that the definition of a “crime of violence” is a question of law for the judge and Hobbs Act robbery categorically constitutes a crime of violence. Affirmed.

Petitioner's Due Process Claims Based on Allegedly Sleeping Juror and Jury's Exposure to Media Rejected

Smith v. Aldridge, 2018 WL 4394997 (10th Cir. 9/17/18) (Okla.) – In a 28 USC § 22554 habeas case, the Tenth rejects the following three claims that the state court unreasonably determined the facts; there was no argument that the state court decision was contrary to, or an unreasonable application of, clearly established federal law. Smith had been convicted of enabling child abuse of her two-year-old daughter. She argued:

(1) she was denied her right to an impartial jury and due process because a juror slept during much of the trial. She submitted five juror affidavits and two affidavits from trial attendees supporting that fact. However, the trial judge asserted that he watched the jury carefully and only saw one juror sleeping at one point during the trial. It was reasonable for the state court to conclude that the judge's statement was more persuasive than the affidavits and to credit the judge's statement without holding an evidentiary hearing. Although the trial judge did not have the benefit of the five juror affidavits when he concluded no juror continuously slept, he made firsthand observations of the trial. There were five lawyers in the courtroom and the fact that none of them complained about a sleeping juror supports the judge's belief that no juror slept throughout the trial. AEDPA barred the Tenth from ordering an evidentiary hearing because the requirements of § 2254(d) and (e)(2) were not met.

(2) her counsel ineffectively failed to ask the court to do something about the sleeping juror. For the same reasons it rejected the first claim, the Tenth decides counsel did not thereby afford ineffective assistance.

(3) violation of the right to an impartial jury and due process based on the jury's exposure to outside information and prejudicial media coverage. The state court concluded Smith failed to establish any alleged misconduct prejudiced her. The trial court took significant steps to ensure that jurors were not exposed to extraneous outside information and allowed a change of venue. Only three jurors said they had previously heard of the case. Even if some jurors accessed some extraneous information, there was no showing that the state court unreasonably concluded that exposure did not result in prejudice.

OK Death Sentence Affirmed

Grissom v. Carpenter, No. 16-6271, 11cv1456 R, 2018 WL 4171015 (Aug. 31, 2018) (W.D. Okla.): Mr. Grissom was convicted in Oklahoma state court of first degree murder and other offenses and sentenced to death. After exhausting his state court remedies, Mr. Grissom filed a §2254 petition raising eleven grounds for relief. The district court denied the petition and granted a certificate of appealability on the issue of whether Mr. Grissom’s constitutional rights were violated when the state trial court concluded that the evidence did not support instructing the jury on lesser-included offenses. Mr. Grissom appealed. The Tenth Circuit granted a COA on two additional issues: ineffective assistance of counsel and cumulative error. The Tenth Circuit held that the state appellate court did not unreasonably apply Strickland in rejecting Mr. Grissom’s ineffective assistance of counsel claim based on lack of prejudice; trial counsel was not ineffective for failing to request a jury instruction on intoxication and for the lesser-included offense of second-degree murder; Mr. Grissom was not entitled to a jury instruction on involuntary intoxication; and the alleged errors, considered together, did not deprive Mr. Grissom of his right to a fair trial and due process.

Upward Variance Based on Criminal History Upheld

US v. Hoaks, 2018 WL 4238267 (10th Cir. 9/6/18)(unpublished): The court affirms sentence increase to five years from an advisory guideline range of 24-30 months. Defendant defrauded the Postal Service of nearly $62,000 by buying stamps with bad checks. She pled guilty to conspiring with her twin sister to violation 18 USC 371. The PSR noted the "seriousness and continuity" of the defendant's criminal history, which included 18 convictions, of which 13 did not count for various reasons, including age. At sentencing, the defendant described her abuse as a child, her relationship with her son, and her acceptance of responsibility. The sentencing court focused on her criminal history and varied upward. On appeal, the defendant contended the court did not adequately explain its reasons for the upward variance at the hearing or in the statement of reasons. Applying plain error review, because the defendant did not object to the procedure below, the panel finds that the district court's explanation was adequate and she couldn't show prejudice. The sentence was also substantively reasonable in light of the defendant's criminal history.

NM Armed Robbery (Deadly Weapon) and Agg Assault Are ACCA Predicates

US v. Baker, 2018 WL 4232030 (10th Cir. 9/6/18) (unpublished): 2255 movant was properly denied Johnson relief because his two New Mexico armed robbery with a deadly weapon convictions and his New Mexico aggravated assault conviction qualified as ACCA predicates under the elements clause.

Gun Defendant Gets New Trial Because Jury Instructions Incorrect

US v. Scott, 2018 WL 4182114 (10th Cir. 8/30/18) (unpublished): On plain error review, the Court reverses a conviction for felon in possession of a firearm because the jury instructions failed to include the element that the defendant intended to control the firearm. The error was not harmless because the gun was found in a car with defendant and three other individuals, none of whom claimed the gun. The circumstantial evidence was unpersuasive. The gun's location in the car meant it was easily available to another passenger and awkwardly placed for the defendant. The DNA evidence was inconclusive, as the defendant's DNA was one of three profiles on the gun and the government expert admitted the DNA was "trace DNA or touch DNA," so it could have been put on the gun through secondary transfer. A red bandana next to the gun could have belonged to anyone in the vehicle. The case is remanded for a new trial.

District Court Allowed to Consider Acquitted Conduct At Sentencing

US v. Sadler, 2018 WL 4181734 (10th Cir. 8/30/18) (unpublished): No certificate of appealability for this 2255 movant. The defendant assaulted his girlfriend while he possessed a firearm. He was charged with various state offenses and with felon in possession of a firearm in federal court. He received a sentence of 120 months on the federal charge. In state court, he was ultimately convicted only of aggravated assault. The Tenth Circuit rejects all his arguments: 1) the district court properly refused to take judicial notice of testimony from the state trial under FRE 201(b). 2) Defendant's counsel was not ineffective merely because he was facing disciplinary action at the time of defendant's federal trial and was disbarred after defendant's federal sentencing. Defendant fails to point to any deficient performance by his trial counsel. 3) Defendant was not entitled to resentencing. The district court had enhanced his sentence under the guidelines for the kidnapping, and he was later acquitted of that charge. However, the district court could properly consider acquitted conduct at sentencing.

Duress Instruction Not Warranted Where Theft Motivated Allegedly by Fear of Stepfather

U.S. v. Dixon, 17-7010, 15cr0084 RAW, 2018 WL 4039125 (Aug. 24, 2018) (E.D. Okla.): Ms. Dixon was charged with embezzlement and theft from an Indian tribal organization under 18 U.S.C. § 1163. Prior to trial, Ms. Dixon filed a notice of the defense of duress, on the theory that she faced an imminent threat of sexual assault from her stepfather and that her posttraumatic stress disorder caused her to believe that she could not escape the assault except through theft. Ms. Dixon requested Tenth Circuit Pattern Jury Instruction No. 1.36 and filed a written proffer of the expert testimony in support of her duress defense. The trial court rejected the defense, and the jury convicted Ms. Dixon. On appeal, the Tenth Circuit held that Ms. Dixon failed to establish the second element of the duress defense by failing to show that she had no reasonable, legal alternative to violating the law.

Enhancement for using premises to store drugs warranted

U.S. v. Murphy, 17-5118, 17cr0005 CVE, 2018 WL 4042095 (Aug. 24, 2018) (N.D. Okla.): Mr. Murphy pleaded guilty to two counts of possession with intent to distribute heroin, two counts of possession with intent to distribute methamphetamine, and two counts of being a felon in possession of a firearm. The PSR added two levels for maintaining a premises for the purpose of distributing a controlled substance under U.S.S.G. § 2D1.1(b)(12). Mr. Murphy objected to the premises enhancement. The district judge sentenced Mr. Murphy to 70 months imprisonment, which was within the applicable guideline range (57-71 months) if the § 2D1.1(b)(12) enhancement were not considered. Mr. Murphy appealed. The Tenth Circuit held that the § 2D1.1(b)(12) enhancement was warranted because Mr. Murphy’s use of his home to store drugs for the purpose of distribution was both frequent and substantial.