Mitigating role adjustment depends on relative culpability and not on essentialness of role

United States v. Yurek, ___F.3d___, 2019 WL 2181159 (No. 18-1134, 10th Cir. May 21, 2019).
Mitigating role adjustment looks to relative culpability in same scheme not whether the role played was essential. Don’t lie on your taxes or in bankruptcy court – that is sufficient to uphold convictions for bankruptcy fraud and tax evasion. Also, the court prefers to try co-defendants together so good luck getting it severed. And the appropriate Guideline for bankruptcy fraud is § 2B1.1.

Co-defendant's post-robbery shooting of officer supported sentencing enhancements even though defendant had already been arrested

United States v. Patton, 2019 WL 2571866 (10th Cir. June 24, 2019) (KS, published): Patton was the getaway driver in a string of armed robberies that ended in his arrest. An hour after his arrest, his associate shot a detective who was investigating the pair’s most recent robbery. Patton pleaded guilty to aiding and abetting Hobbs Act robbery and carrying of a firearm during the robbery. On appeal he challenged the district court’s finding that he inflicted "permanent or life-threatening [b]odily injury" warranting a 6-level increase under U.S.S.G. § 2B3.1(b)(3)(C) and that he assaulted a law enforcement officer justifying another 6-level increase under U.S.S.G. § 3A1.2(c)(1) (Official Victim).

On appeal, Patton argued that the co-defendant’s shooting was not within the scope and in furtherance of the jointly taken criminal activity because he was arrested before the shooting. The panel disagreed. Starting with the principle that robberies carry with them "the inherent prospect that someone could be injured," the panel said that ‘relevant conduct’ encompass acts or omissions of an associate even when the accused is not present. Those acts or omissions may include those taken to avoid detection or responsibility. It did not matter that Patton was in custody and there was nothing he could do to further any jointly undertaken activity. His associate was still at large and attempting to elude police – one of the goals of a joint robbery. Shooting the detective advanced this goal.

Patton also said the official victim enhancement should not apply to him because the assault did not occur during the "immediate flight" from the robbery. Even though an hour passed from when Patton was arrested until his associate assaulted the officer, the panel said, that in context, there was no break in causation between the flight from the robbery and the shooting. Consequently, the shooting was part of the immediate flight from the robbery.

Denial of mistake-of-law defense was not error in marijuana case; Defendant had more plants than allowed by Colorado law

United States v. (Stormy Bob) Griffith, 2019 WL 2571747 (10th Cir. June 24, 2019) (CO, published): A jury convicted Griffith of conspiracy and possession with intent to distribute marijuana and being a felon in possession of a firearm. His appellate counsel filed an Anders brief. Still, counsel suggested numerous grounds which might be "potential appealable issues based on the record." After reviewing those issues, the panel agreed that there were no grounds for appeal that were "not wholly frivolous."

For our purposes, the most important issue reviewed was whether the district court erred in not instructing the jury on Griffith’s mistake of law defense. Griffith’s proposed instruction said (1) his conduct was legally authorized if he had acted under a mistaken belief that his conduct was not illegal, and (2) his conduct was permitted by an official written interpretation of the law issued by a public entity empowered to interpret the applicable law. The panel said the court’s decision was correct because Griffith did not demonstrate he was in compliance with Colorado’s marijuana laws. Colorado allows cultivation of up to 99 plants per ‘patient,’ but Griffith and his wife had 478 plants.

Duress defense properly denied to reentry defendant who had been in U.S. illegally for three years

United States v. Arias-Quijada, 2019 WL 2495832 (10th Cir. June 27, 2019) (OK): Arias was charged with illegal reentry. He reserved the right to appeal the district court’s denial of his motion to assert a duress defense. The panel affirmed the district court’s decision. Because Arias committed a continuing crime and did not surrender to law enforcement, he was required to proffer evidence that he had a well-grounded fear of an immediate threat of death or serious bodily injury during the entirety of the 3 years he remained illegally in the US. His subjective belief that he would be immediately returned to El Salvador if he surrendered was not supported by evidence in the record. Also he never ‘formally’ applied for asylum or otherwise sought to enter legally. Therefore, the panel concluded, there was no evidence from which a jury could determine he acted reasonably by failing to surrender to law enforcement either when he entered illegally or during the 3 years between that entry and his arrest.

Part of defendant's testimony properly excluded because not properly noticed as expert testimony

United States v. Bishop, 2019 WL 2414996 (10th Cir. June 10, 2019) (UT): Bishop was convicted of unlawfully manufacturing and possessing machine-guns. On appeal he argued that the district court improperly limited his right to present a defense by excluding portions of his testimony after finding it was expert testimony and not properly disclosed to the government. He also said the court’s jury instruction on the offense elements was incorrect as were its rulings on hearsay and expert testimony from the government. The panel was unpersuaded by any of his arguments.

The panel found Bishop was required to comply with Fed.R.Crim.P. 16's expert disclosure requirement. Since he did not, the trial court correctly excluded portions of his testimony. Even so, Bishop still was able to testify about the core issue in his case-his intent.

Regarding the offense elements instruction, which Bishop did not object to at trial, the panel found any error was not clear or obvious. Arguably the court’s instruction did not specifically state the government had to prove Bishop knew he was manufacturing machine guns and knew the specific physical traits that made his device a machine-gun. Nevertheless, in the instruction given, ‘knew’ implicitly modified ‘manufacturing’ and ‘machine-guns.’ To be sure a jury is properly instructed, the panel said the trial court should specifically instruct the jury regarding an accused’s knowledge of the features of his firearm that bring it within the scope of the charged offense.

Finally, the panel found the court’s evidentiary rulings were not plain error. The hearsay it admitted was cumulative to other admissible testimony. And the government’s machine-gun expert was permitted to testify about how the law applies to a certain set of facts because he provided an adequate explanation for his conclusions. That his opinion embraced the ultimate issue -that Bishop’s device was a machine gun and the device did not appear to be altered accidently - does not make it inadmissible.

Supervised Release Condition Improperly Delegated Authority to Probation Officer

United States v. Cabral, 2019 WL 2416950 (10th Cir. June 10, 2019) (CO): The panel vacates Cabral’s sentence because the district court’s supervised release condition regarding ‘risk notification’ improperly delegated its authority to the probation office. At sentencing, the district court imposed a ‘standard risk notification condition’ whereby the probation office determines if the accused poses a risk to another and if so, may require the accused to notify the person about that risk. Because this condition grants the probation office decision-making authority that could infringe on a wide variety of Cabral’s liberty interests (such as interfering with his right of familial association by ordering him to tell his family members he poses a risk to them or impermissibly restricting employment opportunities by directing him to warn an employer about a perceived risk), the panel found it is an improper delegation of judicial power.