District court told to consider whether NM aggravated assault is still a violent felony

United States v. Sanchez, 2021 WL 4168217 (September 14, 2021) (NM): After an earlier decision, defendant moved to abate the proceedings, (which stayed the filing of a petition for rehearing), until the Supreme Court decided Borden v. United States and Torres v. Madrid. When those decisions were published, defendant filed a petition for panel rehearing asking the court to reconsider its decision in light of those cases. This refurbished opinion shores up the panel’s Fourth and Fifth Amendment analysis and again affirms the district court’s decision to deny the motion to suppress. It also remands Sanchez’s case to the district court to decide whether New Mexico aggravated assault still is a violent felony after Borden.

Misconduct that occurs after the charged conduct is admissible to prove intent

United States v. Tennison, 2021 WL 4168214 (10th Cir. Sept 14, 2021) (KS): In this decisicion about a Kansas methamphetamine conspiracy, the panel finds post-conspiracy misconduct is admissible to establish the accused’s intent to participate in an earlier unlawful criminal enterprise and concludes that evidence in conjunction with other testimony is sufficient to support the conspiracy charge. It also affirms the sentence that is much longer than that imposed on the other participant on the grounds that the other participant cooperated. The government charged Tennison with conspiracy to possess with intent to distribute and possession with intent to distribute more than 50 grams of methamphetamine. At trial, a buyer, Job, testified that she called the ‘drug organization’s’ supplier on behalf of Tennison. She said “someone wanted to buy a kilo of meth for $11,000.” Job was told that much wasn’t available but a 1/4 kilo was for $2500. After Tennison agreed, Job then arranged the sale. She and Tennison met with couriers from the organization in a grocery store parking lot. One of them got into her pickup truck and sold Tennison the meth for $2500. Unbeknownst to them, law enforcement was watching. They pulled them over, ordered Tennison out of the truck and as he stepped out the meth fell out of his pants. Tennison was not arrested then but a warrant for his arrest was issued after the indictment was filed. Six months later, law enforcement went looking for Tennison. They waited outside a house where they thought he could be found. When he pulled up, he was stopped and arrested. Inside the car officers saw hypodermic needles, digital scales and packaging material in “plain view.” During the search they found over a kilo of meth packaged separately in numerous baggies. Tennison wasn’t charged with the meth found in the car but the trial court ruled under Fed.R.Evid. 404(b), the government could present that evidence at trial. In its view, this evidence “helped illuminate his intentions” when he purchased methamphetamine earlier. On appeal Tennison argued the district court shouldn’t have admitted this evidence because the dissimilarities between each alleged possession made the latter irrelevant for Rule 404(b) purposes. The panel disagreed. It explained that an extrinsic act’s similarity to the charged offense is the “linchpin” of the Rule 404(b) analysis. Similarity is assessed through factors like temporal and geographical proximity but admissibility does not depend on those factors being identical. Here, the panel said, similarity “turns on whether the district court could find it more likely than not that Tennison had the same state of mind with respect to the drugs he possessed” on the earlier date and as he did on the later date. Tennison first tried to buy a kilo of meth but got only a 1/4 kilo. A year later he had digital scales, packaging material and over a kilo of meth in assorted baggies. His subsequent possession was relevant to the earlier purchase because it showed “his intent regarding” that meth. It was then up to the jury to decide whether that evidence proved beyond a reasonable doubt the intent element of the crime. The panel added that Fed.R.Evid. 403 did not bar the admission of this extrinsic evidence. Because Tennison argued at trial that the meth he purchased through Job was for personal use, the government was “forced to produce evidence of his intent to distribute.” Although this evidence was prejudicial, it was not unfairly so because it didn’t “subordinate a juror’s reason to his or her emotions.” Tennison also argued that the government’s conspiracy evidence was insufficient to sustain the conviction. Because he was a one-time customer of Job’s, no reasonable juror could have found that he was a member of the larger conspiracy. Specifically, the government did not prove he knew the “essential objectives of the conspiracy,” nor that he “knowingly and voluntarily involved himself with the conspiracy.” Not so, said the panel. A defendant’s participation “may be slight” and “may be inferred by the defendant’s actions.” Even a “single transaction can prove a defendant’s participation in a conspiracy.” Here, the “circumstances of his purchase” prove his “active participation.” Job and the supplier were members of the conspiracy. Tennison asked Job to use her connections to help him purchase methamphetamine. When the courier got into her truck and Tennison paid for the drugs, he “actively participated in the transaction” by paying the drugs. “A reasonable trier of fact could [thereby] infer Tennison’s knowledge of the conspiracy’s objective to distribute meth as well as his voluntary participation in the conspiracy.” Tennison doesn’t benefit from the buyer-seller rule because that rule doesn’t apply when the buyer shares the conspiracy’s objective to distribute large quantities of drugs. Although Tennison claimed the amount he purchased was for personal use, government witnesses testified a 1/4 kilo was an amount consistent with distribution, not personal use. Finally, Tennison argued that the court’s imposition of a 175 month prison term was substantively unreasonable. Given that he and Job played a similar role in the conspiracy and she got only 21 months, his sentence should have been closer to hers. The panel pointed out that Job pleaded guilty and cooperated with the government. Thus, Tennison and Job were not similarly situated and their differing prison terms are both understandable and reasonable.

Defendant did not have a prior conviction for a "crime punishable by imprisonment for one year" under Kansas law; felon-in-possession conviction reversed

United States v. Hisey, 2021 WL 4163499 (10th Cir. Sept 14, 2021) (KS): The panel majority agrees with Hisey that he is actually innocent of the offense to which he pleaded guilty, unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g)(1). The panel finds that under Kansas law the maximum punishment for the offense which served as the § 922(g)(1) predicate, was probation and drug treatment. Therefore, Hisey had not violated § 922(g)(1) when possessed the firearm because he had not been convicted of a “crime punishable by imprisonment for one year.” Before he possessed the firearm, Hisey was convicted in Kansas state court of possessing controlled substances. Kansas’s sentencing law required the court to impose a sentence of drug treatment and probation, which it did. The court told Hisey if he violated his conditions of probation, it was possible that probation would be revoked and he could be imprisoned for up to 30 months. The panel said that it did not matter that Hisey could be imprisoned within the ‘presumptive’ imprisonment range of 28 to 32 months if he violated probation. Nor did it matter that the state court also imposed a suspended 30 month term. The maximum prison term for the offense is determined by looking at the term this particular individual could have received. The panel found that the state court was obligated to sentence him to probation and drug treatment, “so he could not have received any imprisonment.” The panel explained that what might await Hisey if he violated probation was not part of maximum punishment analysis. Probation revocation was only possible through new proceedings and a new hearing. There the state would need to prove Hisey violated conditions. Yet even if it did so, Kansas law did not require the court to impose a prison term over one year. Rather, it expected the court to start with the lesser sanctions of continuing or modifying conditions and 2-3 days of confinement. Even if the court eventually revoked Hisey’s probation, it had the discretion to sentence him to a term less than 30 months and less than a year. The possible “path to future imprisonment” then is filled with contingencies, and thus, cannot set the maximum punishment this accused faced when he possessed the firearm. Indeed, when Hisey possessed the firearm, he had not violated any of his probation conditions. The panel concluded, the state court “could not have imposed any prison time for the drug conviction” and “given the impossibility of imprisonment,” Hisey did not violate § 922(g)(1) when he possessed the firearm.

Waiver in plea agreement was limited to sentencing challenges; defendant's 2255 petition attacking his conviction could go forward

United States v. Loumoli, 2021 WL 4200766 (10th Cir. Sept. 7, 2021) (UT): The panel holds the waiver in Loumoli's plea agreement, in which he waived his right to challenge his sentence, did not prevent him from collaterally attacking his conviction. Loumoli's 28 U.S.C. sec. 2255 petition challenged his conviction for using or carrying a firearm during the commission of a crime of violence. In contrast, the panel said, the 'plain language' of the waiver illustrates Loumoli waived only a challenge to his sentence. To be sure, the waiver included examples of the court's decisions that came within the waiver. All of them described components of Loumoli's sentence and did not relate in anyway to the determination of his guilt. The panel reversed the district court's order granting the government's motion to dismiss Loumoli's 2255 petition and remanded for further proceedings.

Panel rejects numerous arguments in affirming drug conspiracy convictions

United States v. Cushing & United States v. Hall, 2021 WL 3730687 (10th Cir. August 24, 2021) (OK): in affirming the defendants' conspiracy convictions, the panel explains that even peripheral conduct will satisfy conspiracy's interdependence element. It also takes an expansive view of what constitutes admissible res gestae evidence and expert testimony. The government charged Cushing and Hall with being members of a single methamphetamine conspiracy. On appeal both argued that the government failed to prove interdependence as well as the existence of single conspiracy. They also argued the district court erred in allowing Federal Rule of Evidence 404(b) evidence to masquerade as intrinsic evidence when the alleged conduct occurred outside of the conspiracy's active time frame. Additionally, both said the court should not have allowed an officer to testify as an expert on "drug conspiracy matters" because it gave the jury the false impression he was an expert in solving crimes and deciding who is guilty. To prove the interdependence element, the government must show that the co-conspirators intended to act together for their shared mutual benefit within the scope of the conspiracy charged. As to Cushing, the panel said the government's evidence adequately demonstrated that he "shared" the "single criminal objective" of the conspiracy's central figure and main supplier, namely, the distribution of large quantities of methamphetamine. More specifically, Cushing was supplier's 2d largest client and frequently was given methamphetamine on credit. Witnesses said they bought methamphetamine from Cushing. From this evidence the jury could infer that Cushing was dealing the methamphetamine he bought from the supplier, "in furtherance of the goal of distributing the charged quantity of methamphetamine." Regarding Hall, the panel acknowledged the government did not prove he distributed for remuneration the methamphetamine he bought from the supplier. No matter, says the panel, "participation in a drug conspiracy . . . includes facilitating the drug operation, such as exchanging information related to concealment and law enforcement activity." The jury heard that Hall warned the supplier of police activity. This furthered the conspiracy's goals by "attempting to keep the operation concealed." And being that profit is not an element of conspiracy, when Hall shared his meth with others, he still was "furthering the distribution objective" of the conspiracy. The panel quickly dispensed with the defendants' objections to the res gestae evidence and expert witness testimony. As to the res gestae evidence, the panel held that the post-conspiracy text messages on Hall's phone showed he was continuing to "engage in the charged crimes -- that is, people continued to come to his house to pick up methamphetamine, in the same manner as during the stated indictment period." Hall's recorded call with the supplier describing his beating of a 'snitch' and his concern law enforcement was descending on him, gave the jury "important contextual information" about his relationship with the supplier. It showed that he sought direction and advice from the supplier, "implying trust and a strong bond." NOTE: it would appear that we too can rely on such evidence to discredit witnesses without running afoul of Fed.R.Evid. 404(b). See e.g., United States v. Montelongo, 420 F.3d 1169, 1174-76 (10th Cir. 2005) (evidence of witness' other wrongs, acts, or crimes is admissible “for defensive purposes if it tends, alone or with other evidence, to negate the defendant's guilt of the crime charged against him."). The panel held the district court did not err in allowing the agent to testify as an expert about user and distribution weights as well as his interpretation of "vague language." The panel said his testimony aided the jury's understanding of the case because "the average person is often innocent in the ways of the criminal underworld." [One wonders how the agent's testimony is, in accordance with Fed.R.Evid. 702, "the product of reliable scientific, technical, or specialized principles and methods" and how he has "reliably applied the principles and methods to the facts of the case."]

Federal assault statute precludes assimilation of similar state crime on federal lands

United States v. Harris, 2021 WL 3730008 (10th Cir. August 24, 2021) (WY): As a matter of first impression the panel holds that the federal assault statute, 18 U.S.C. sec. 113, precludes the assimilation of a Wyoming state assault statute. After a confrontation in Yellowstone National Park, a grand jury charged Harris, through the Assimilative Crimes Act (ACA), with Wyoming's threatening to use a drawn deadly weapon on another. The panel held that the ACA applies only if the act or ommission in question is not made punishable by any enactment of Congress. In the federal assault statute, Congress clearly and precisely delineated a range of conduct that qualifies as an assault within areas of federal jurisdiction. This statute indicates its intent to punish conduct such as Harris's to the exclusion of the Wyoming statute. Even though the Wyoming statute more accurately described Harris's alleged misconduct, that is not the test. Assimilating the more specific state law to punish the same conduct covered by sec. 113 would "substantially disrupt Congress's careful assault definitions." A state law also cannot be assimilated, when, like here, there is a difference in punishment: Wyoming's statute is a felony, whereas one of sec. 113's subsections is a misdemeanor. Nor can a state statute be assimilated just because it requires a different mens rea.

District court testified as a witness when it instructed jury that only one video of defendant's drug deal existed. Error was harmless, though.

United States v. Andasola, __F.4th__, 2021 WL 4166671 (10th Cir. 2021) On redirect, the defendant—who was on the witness stand and facing charges for distributing methamphetamine and heroin—questioned whether the video played for the jury (of him providing drugs to an informant) was the same video the government produced pretrial. Over defense counsel’s objection, the district court followed the government’s suggestion to instruct the jury that only one video existed. On appeal, everyone agrees that the district court erred under Federal Rule of Evidence 605, which prohibits a judge from testifying as a witness at trial. The district court impermissibly commented on a factual issue for the jury. Yet, the error is harmless. Why? Because (1) the district court’s comment didn’t establish an element of the crime; (2) the other evidence of guilt was overwhelming; and (3) the defendant’s credibility was not diminished, again, because there was a lot of other evidence reflecting his orchestration of the video-recorded drug deal.

Denial of suppression motion affirmed; whether officers' unrelated investigations prolonged stop is a factual issue

United States v. Malone, __F.4th__, 2021 WL 3851910 (10th Cir. 2021) Short story: Upholding a suppression loss in a very pretext-y traffic stop. Unrelated investigations—like inquiries into criminality or dog sniffs—don’t run afoul of the Fourth Amendment unless they prolong the stop. Prolongation is a factual question. Longer story: Cops were surveilling a hotel known for criminal activity and zeroed in on a car which they had their cop-buddies scrutinize until a traffic violation occurred. While the driver was looking for insurance and registration, Mr. Malone (passenger/defendant) provided his ID and disclosed he was on parole for burglary of a pawn shop. Cop returned to patrol car while the driver apparently still searching for insurance and registration and found out that Mr. Malone was a suspected gang member. This apparently entitled him to investigate further. Mr. Malone was ordered to exit the car. Cops find a pistol, and eventually charge § 922(g). Defense counsel argued that ordering the exit from the car was a detour. Tenth accepts the exit order constituted a detour, but says officers still acted lawfully because the stop wasn’t prolonged. And because assessing whether prolongation occurred is a factual question, and the appeal didn’t challenge under clear error, the issue was waived. But even if it hadn’t been, the Tenth still would have flushed because it found that arguments made during oral argument were not persuasive—mainly, the time it takes to track down registration and insurance doesn’t add time to render the traffic stop unreasonable.

Supervised release condition banning all access to internet upheld

U.S. v. Egli, 19-4140, 2021 WL 4314242 (10th Cir. Sept. 23, 2021): On plain error review, the court affirms the imposition of a complete ban on internet use: prohibiting the defendant was accessing any computers or the internet, or engaging in any employment that involved internet access. The Court acknowledged that it has been hesitant to approve complete bans on internet access, in this case the defendant had a lengthy history of violating less restrictive bans. Before addressing the merits, however, the Court rejected the government’s argument that Egli had waived the issue and therefore waived appellate review. On the contrary, because there was no evidence that Egli’s counsel had considered the issue and deliberately abandoned it, the issue was forfeited rather than waived. Accordingly, the Court could consider the issue under the plain-error standard. So, defendant won a battle but lost the war.

Acceptance of a pardon is not a legal admission of guilt

Lorance v. Commandant, U.S. Disc. Barracks, 20-3055, 2021 WL 4314248 (10th Cir. Sept. 23, 2021): In an issue of first impression, the Tenth Circuit holds that the defendant’s acceptance of a presidential pardon is not a legal admission of guilt and a waiver of his habeas rights. Moreover, even though petitioner has been released, he alleges sufficient collateral consequences from his conviction so that his case is not moot. Accordingly, the panel reverses the district court’s dismissal of his federal habeas petition.

United States v. Williams, __F.4th__, 2021 WL 3716402 (10th. Cir. 2021)

Mr. Williams pleaded guilty to a single count of bank fraud under § 1344 and stipulated to restitution under the MVRA associated with that count. He survives an appellate waiver and then things take a turn for the worst. He gets hammered by the Tenth for appealing the amount he stipulated to (invited error and/or plain error for not objecting) while wanting to keep other terms of plea (that benefitted him) in place. One interesting argument was an attempt at a categorical approach analysis for the MVRA, stating that the “scheme or artifice” in § 1344 is broader than the MVRA’s use of “scheme.” Within this, it appears that the Tenth is still hanging on to its restitution-isn’t-punishment reasoning, even though this was called into question in United States v. Ferdman, 779 F.3d 1129, 1132 n.1 (10th Cir. 2015) (acknowledging language of Paroline, 572 U.S. 434, 456 (2014) “calls into question [the Tenth Circuit’s] view that the MVRA lacks a penal element”). Mr. Williams also loses a challenge to the substantive reasonableness of his sentence.