United States v. Shamo, 36 F.4th 1067 (10th Cir. 2022) concerning the “inexplicable peculiarity in the Controlled Substances Act” and continuing criminal enterprises and online illicit drug sales on the darkweb. Aaron Shamo stumbled into drug dealing – it started by selling his prescribed Adderall online. Then he realized he could purchase other drugs (from places like China and India) with higher resale values and sell them. And then he realized he could make pills. He could make fentanyl pills! (Or more accurately he told someone else to make the pills with his pill press and fentanyl.) And then he needed people to pick up the imported drugs; package his orders; mail the orders; and respond to “customer service requests.” The government charged Mr. Shamo with a bunch of drug crimes, some money laundering, using the US postal system improperly (it just sounds more fun that way). Two charges carried life sentences (distributing a controlled substance resulting in death and being a criminal mastermind, i.e. principal leader of a continuing criminal enterprise 21 U.S.C. § 848(b).) As there was a lot of evidence of the online illicit pharmacy, at trial the defense focused on the life sentence charges. They beat the resulting in death but lost the criminal mastermind. On appeal, tactics change and they challenge the sufficiency of a conviction for possession with intent for fentanyl and manufacturing generic Xanax. The challenge to fentanyl is that the statute gives the chemical name (like H2O for water, but it is long and complicated and I’m not putting it here). At trial no one used the chemical name (because long and complicated) and instead just said fentanyl. Thus, the evidence was insufficient [Jazz Hands]. Except the defense offered an instruction saying “fentanyl [long complicated chemical name] is a controlled substance within the meaning of the law.” The Tenth said this effectively waived that issue. Next Mr. Shamo said the government didn’t prove he knew fentanyl was a controlled substance and no way did he know that he was possessing long complicated chemical name because only a chemist would know that! The Tenth doesn’t say this is waived but still doesn’t buy it. They point out, “he Supreme Court has identified two ways in which § 841(a)(1)’s knowledge requirement can be satisfied: (1) “by showing that the defendant knew he possessed a substance listed on the [federal drug] schedules, even if he did not know which substance it was” or (2) “by showing that the defendant knew the identity of the substance he possessed,” even if he did not know it was listed.” So Mr. Shamo is outta luck there. So in an unrelated investigation, an agent screen shot customer reviews on one of the many dark websites that Mr. Shamo sold his wares. Each comment had the associated product – so “quick delivery!” would be paired with 100 30mg Adderall. These were admitted into evidence – Mr. Shamo argued that the screen shots were not properly authenticated and the webmaster needed to testify (which would have been himself?). The agent also created an excel sheet that tallied the different products and amounts sold. Anyhoo, the Tenth neatly ducked the issue by harmless error – that its only helpful use would be to establish 12,000g of fentanyl for mastermind of continuing criminal enterprise (the life sentence). And agents seized 12,825g in just one of the raids. Oops. The government also called an expert cop who testified all about how drug trafficking works: there is a boss who makes the most money, makes decisions, delegates & there are workers who prepare and ship/deliver the drugs. He does say a few odd things like “that sometimes a conspiracy ‘just starts happening’ and that often ‘[i]t's very fluid and it just evolves into an organization and everybody has their role that's defined by someone’.” And explains his understanding of the continuing criminal enterprise statute. The defense says (and the 10th agrees, miracle of miracles) that “testimony crossed the line.” But once more, the 10th declares there is no actual harm from this. Of note, they do acknowledge there could be an issue if the cop was an expert in Mr. Shamo instead of drug trafficking generally. The defense filed a motion in limine to limit any mention of dead people to those named in the indictment; the government opposed this but eventually agreed “it won't tie deaths of unavailable witnesses to Defendant or say that the deaths resulted from overdoses.” The government honored the letter of the agreement if not the spirit. Then the DOJ paid travel expenses for families of dead people to be at the trial. In a shocking turn of events surprising exactly nobody, the families cried (loudly) when the deaths were referred to but were not overtly referred to as overdose deaths and the agent specifically said Mr. Shamo was not charged with these deaths. The Tenth in a move reminiscent of one New Mexico’s Appellate Courts favorite dismissals (In re Adoption of Doe, 1984–NMSC–024, ¶ 2, holding where a party cites no authority to support an argument, we may assume no such authority exists) stated “Defendant provide[d] no case law or other authority to suggest that the assistance provided to victims’ families to attend trial was improper.” So, no mistrial for you! In closing argument, the government said “He knew the nation was on fire with opioids, and he poured fuel on those flames over and over and over again, never getting burned himself, but causing pain and misery wherever his fire spread.” Once more, the Tenth circuit again relied upon harmless error and said because the evidence was so overwhelming this could not possibly have any effect on the verdict. Lastly, the defense pointed out that a life sentence for being a criminal mastermind was inherently cruel and unusual. The Tenth was remarkably unsympathetic to this truth.

United States v. Reed, 39 F.4th 1285 (10th Cir. 2022) ACCA & occasions different from one another & IAC on direct appeal Mr. Reed had a mixture of state and federal convictions when he picked up a felon in possession. He pled[1] and the agreement stated max of 10 years unless ACCA eligible. Trial counsel told Mr. Reed that he didn’t think he was ACCA eligible but couldn’t guarantee it yadda, yadda, yadda. The possibility of an ACCA sentence was discussed at the plea colloquy. The plea also said you can’t withdraw your plea if you get an unexpected sentence. PSR came out and tah-dah: Mr. Reed is ACCA eligible! Mr. Reed fires us and gets a new attorney who tries to withdraw the plea based on IAC for not catching that Mr. Reed was ACCA eligible. They had a feeling and decided the plea was knowing and voluntary despite not thinking ACCA applied. On appeal they kinda reach the IAC issue – but shortcut the analysis by going first to whether Mr. Reed could establish prejudice. Of course in the plea context, to show prejudice you have to show that he likely would have gone to trial. And they decide Mr. Reed cannot show that; they reason that he was repeatedly warned that ACCA may apply. Secondly, they point out the evidence was strong and he did get a benefit from the plea even with ACCA. So, no prejudice to Mr. Reed. Now this is why the case is important. Mr. Reed made an Apprendi/Alleyne argument that the district court cannot determine if the predicate felonies occurred on occasions different from one another. Recall in March, SCOTUS decided Wooden v. United States, 142 S. Ct. 1063 (2022), holding that the ACCA’s “on occasions different from7 one another” means the convictions could not stem from the “same criminal episode.” Despite listing a bunch o’ factors that sound like facts, in a footnote, the Court says it is purposefully not reaching Apprendi/Alleyne issue. So, the Tenth says it can’t overrule another panel and years ago they said that a court can make that determination and unless and until SCOTUS says otherwise they’re not going to change their minds. (Mr. Reed did petition for rehearing but the Tenth refused.)

United States v. Cortez-Nieto, 43 F.4th 1034 (10th Cir. 2022) Snitch testimony & jury instructions; snitch testimony & closing arguments; propriety of entering lesser included offenses (with geometry lessons from Hartz and Bacharach) This is long long, so maybe grab a cup of coffee before you start reading. Mr. Cortez-Nieto had a co-d, Mr. Cervantes-Aguilar, who really seems to be much more prominent in this saga, so you don’t wonder why I don’t really talk about Mr. Cortez-Nieto. Celia Suarez rented a house within walking distance of a park that had baseball fields, tennis courts, and playgrounds. The house caught fire. Firefighters showed up but the fire was out by then. The fire investigators wanted to know what/why/how the fire started. They found lots of meth and stuff to make meth. As a result, our dudes were charged with four counts of having/making meth, having a meth house, and conspiracy to do this all within 1,000 feet of a playground. It is worth pausing here to consider a motion to suppress (note I said consider not definitely file one). SCOTUS held fire victims retain the protection of the Fourth Amendment but that “entry to fight a fire requires no warrant, and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze.” Michigan v. Tyler, 436 U.S. 499, 511–12 (1978). After that, officials have to get an administrative warrant to look for the cause of the fire. If during that search they find evidence of arson, that can be admitted. “But if the investigating officials find probable cause to believe that arson has occurred and require further access to gather evidence for a possible prosecution” they have to get a criminal warrant based on probable cause otherwise it’s a Fourth Amendment violation. A few years later, SCOTUS backpedaled a bit. They acknowledge, “the aftermath of a fire often presents exigencies that will not tolerate the delay necessary to obtain a warrant or to secure the owner’s consent to inspect fire-damaged premises. Because determining the cause and origin of a fire serves a compelling public interest, the warrant requirement does not apply in such cases.” Michigan v. Clifford, 464 U.S. 287, 293, (1984). They do reaffirm that investigating the what/why/how of the fire doesn’t allow for a general criminal investigation. “Circumstances that justify a warrantless search for the cause of a fire may not justify a search to gather evidence of criminal activity once that cause has been determined.” Id. at 294. But be wary of plain view during the exigent search for the fire’s origin. Having now paused to consider suppressing the evidence (and why Michigan seems prone to residential fires), back to our case. The government found a lot of “stuff” that tied our guys to the house: a FedEx parcel addressed to one of them; a name on a money transfer; car title; et cetera. Celia testified that she rented it on behalf her paramour, a drug dealer and not either of our guys, for use by Mr. Cervantes-Aguilar. Celia testified she was Shocked! Shocked! That the house was used for manufacturing of meth and clutched her pearls. But paradoxically she also testified that Mr. Cervantes-Aguilar was in charge of the meth lab at the house and he worked for yet another drug trafficker, Mr. Mendoza. Celia’s brother, Victor, turns out also to be a drug dealer who worked for Mr. Mendoza. Small world. Mr. Mendoza manages meth-making and dealing operations (they make it sound so official – like they’re some sort of corporation, Methmart) in both Kansas and Missouri. Victor was the regional manager of Methmart for Missouri, while Mr. Cervantes-Aguilar was the regional manager for Kansas. Victor faced some federal charges for drugs and guns in Missouri. He reached an agreement with the government that he’d testify against our dudes and it wouldn’t be used against him in his Missouri case and he just might get a lower sentence in that case. So he testifies about Methmart and his dealings with Mr. Cervantes-Aguilar. (I do not know what Mr. Cortez-Nieto’s role in Methmart was; I think just low level maker-o’-meth. He’s absent from most of the discussion of what was going on.) Now the Tenth admits, “Victor and Celia were not the most credible witnesses to ever testify in federal court.” Indeed. And defense counsel did their best to point out “people that are charged with drug crimes will lie and say anything to try to reduce their sentence” so that maybe, just maybe, Celia and Victor were lying about their and our dudes’ respective roles at Methmart. But luckily the Tenth has some UJIs about snitch testimony (1.14; 1.15) and a standard credibility instruction (1.08). And there is the UJI on considering just the crime charged (1.19). The last line of UJI 1.19 is: “The question of the possible guilt of others should not enter your thinking as you decide whether this defendant has been proved guilty of the crime charged.” Defense counsel pointed out this sentence is problematic because jurors could interpret this instruction to mean that if the snitches’ guilt “was not to enter the minds of the jurors, then the jurors could not consider the possibility that the two [snitches] were lying to cover up or mitigate their own guilt.” And miracle of miracles, the Tenth agrees that the language is problematic and they “recommend modifying the language of the instruction in similar future cases.” at 1042. But they don’t think it was really a big enough of a deal to reverse because, after all, the instructions as whole properly tell the jurors to think that the snitches might be lying about the corporate structure of Methmart to minimize their own involvement. (The jury got instructions 1.14; 1.15; and 1.08.) But another miracle! The Tenth also says, if that last sentence “had been improperly used, without correction from the district court, in closing argument” they might not be so cavalier about it. And certainly, the defense pointed out that in closing argument the prosecutor told the jury they couldn’t consider the snitches’ motives to lie about Methmart. But the Tenth disagrees with this characterization of the prosecutor’s closing. Rather, they insist, she acted honorably in acknowledging snitch testimony is totally suspect and “the guilt of Victor and Celia would not free Defendants of criminal responsibility.” In fact, the prosecutor was so honorable, “she began the rebuttal closing by saying that Defendants were being tried ‘because they got in bed with Victor and Celia to run’” Methmart. So, it’s all good. The convictions stand. Now, Bacharach agrees that UJI 1.09 is problematic. But he doesn’t agree that the instructions as a whole cure the problem. Rather, he thinks they are contradictory: Instruction 1.19 implicitly bars consideration of snitches potential guilt, and Instructions 1.08 and 1.15/14 implicitly allowed such consideration. Further, “[t]he uncertainty is particularly significant here because • the instructions did not indicate that one was more important than another and • the correct instruction was “given earlier and separately from” the erroneous instruction. We thus can’t possibly know whether the jurors followed” • Instruction 1.09 prohibition on considering the Suarez siblings’ possible guilt or • the directives in Instructions 1.08 or 1.14/15 to consider witnesses’ motives to falsely testify. Miracle of miracles (small edition because it’s not the controlling part of the opinion) he believes the error is not harmless because evidence of guilt was not overwhelming – our dudes admitted to buying meth making stuff but the government also has to prove intended to use for illegal purpose. The government tried to prove intent by placing them in the house. But Bacharach points out our dudes could be using it prove local residence and/or receive mail without actually living there. Recall that our dudes were charged because Methmart was too close to a playground – that is less than a 1,000 feet. The government had a cop (or someone) walk from just inside the park to the driveway of Methmart with a rolling measuring tape. That reading was 942 feet. Google map’s aerial view gave the distance as 602 feet but “the government explicitly disclaimed any reliance on the map for the purpose of proving distance.” (Apparently there was a hill and that’s the discrepancy between the two.) Now, no one much thought about distance at trial. But in the renewed motion for acquittal, the defense argued that the distance had to be from the park to Methmart’s lab itself not Methmart’s driveway. And that would be more than a 1,000 feet. The government countered that “as a crow flies” it would be less than a 1,000 to the actual lab. (Crows are members of corvidae and that family is some of the smartest birds out there. They make and use tools (documented in the wild!) and recognize themselves in mirrors. Still, I’m not sure their flying is the best way to measure distance.) Anyways, the district court sided with our dudes that the distance has to be the actual lab! I KNOW! Another miracle. The judge says that the government cannot now rely on “how the crow flies” because they explicitly disclaimed the crow. The judge then says the government did not prove the lab was within 68 feet of the driveway. (He gave them an extra 10 feet because the measuring guy said he started measuring about 10 feet into the park.) So the government did not prove that Methmart was within a 1,000 feet of a playground. But since the government did prove that Methmart existed, he did not vacate the convictions in their entirely. Rather, he entered a conviction on the lesser included offenses i.e. having/making, conspiring, and having a dedicated meth house. Hartz kinda goes off the rails here – he does it in a footnote – but it is so spectacularly ludicrous and it is the reason there are two concurrences, so we must discuss it. Bacharach’s concurrence objecting to footnote 3 is just as glorious. To be honest you could safely skip reading this part but you’d miss the absurdity. And you probably wouldn’t feel the need to google to see if Bacharach’s undergraduate degree was in math or closely related field (it wasn’t; it was history from University of Oklahoma in 1981). Hartz seems irritated that the government didn’t cross-appeal that Methmart was within a 1,000 feet of a playground. He takes it upon himself “to point out the error should the issue recur in a future case.” According to Hartz it “is incorrect” that the distance from the park to Methmart equals the distance of the park to the driveway plus the driveway to Methmart. Instead, you must become the crow and fly from the park to Methmart so that the distance between the park and Methmart is “the hypotenuse of a right triangle.” He then exhorts us to think back to “high-school geometry” and remember the Pythagorean Theorem (a2 + b2 = c2; where a and b are sides of the triangle and c is the hypotenuse). It does not phase Hartz that we only have one known measurement 932. (I have some vague memory from high-school that to solve for a number value we have to have the same number of equations as variables? I don’t remember exactly.) Hartz starts with the solution he wants, that the hypotenuse is 1,000. He then solves for a= √(10002-9322) which turns out to be about 362.5. The distance from Methmart to the street would have to be more than 362.5 for it to be more than a 1,000 feet from the park. He then courteously concedes that Methmart wasn’t right at the end of the driveway – the 932 feet. He gives allows us to set Methmart back 40 feet. And then he re-solves the equation a= √(10002-(932+40)2) and that turns out to be 234 feet. Hartz then looks at a photograph of the house which he considers “small” and declares there is no way it is more than 234 feet. Bacharach apparently had the same vague memories about just having one number in an equation with multiple variables not giving us a number value for each variable. He draws his own triangle showing the driveway, Methmart (boringly marked lab) and the park. He too assumes the answer Hartz wants – a 1,000 feet. But he points out we don’t know the value of x or the degree of the angle (θ). Now Bacharach finds and cites an on-line trigonometry textbook to help us figure out that the Pythagorean Theorem only works for right triangles (that is 900). Then like a good math teacher he takes us through some hypotheticals showing that even assuming a 900 angle, how far Methmart is into the property makes a (huge) difference. Bacharach cautions too that photographs can lie – he sadly does not include any images like this to demonstrate his point. He concludes that without more actual evidence of angles or distances, “Estimating the lengths of these legs is precarious and unnecessary.” Holmes also disagrees with Hartz insanity but also finds Bacharach’s takedown problematic saying doing so “only compounds the problem of writing about—and arguably opining on—matters that the parties do not discuss.” Okay, leaving the mathematical squabble behind, the majority believes that entering the lesser included was the thing to do. It looks to four factors (the evidence at trial fails to support one or more elements of the crime of conviction; the trial evidence does meet all the elements of a lesser included offense; and that no undue prejudice will result to the defendant) to determine whether to enter the lesser. Now the majority does not think it matters if the government requested the lesser included instruction. Nor do they think it matters that the district court decided to enter the lesser sua sponte because “[c]ourts have always had authority to resolve raised issues as fairness requires.” Now both Holmes and Bacharach agree with entering the lesser included here, but both emphasize the rarity of doing so sua sponte. They say it’s fine here due to the unusual posture of the case – namely that the defense only disputed an element after the finding of guilt. They point out “[i]f the government knows that an element is contested but does not seek instruction on the lesser offense, the government could obtain a strategic benefit by presenting the jury with an all-or-nothing choice.” And if that is the case, a judge entering a conviction on the lesser would be unfair. But that’s not what happened here, so it’s all good. And so concludes the saga of Methmart.

Court rejects "procedural reasonableness" challenge to appellate waiver despite massive upward variance

United States v. Gross, 44 F.4th 1298 (10th Cir. 2022) Substantive reasonableness of sentence Mr. Gross had a teensy episode of road rage (as the passenger) and shot at the car that allegedly cut them off. He told his brother (in the backseat) to hide the gun in the trunk. Cops eventually catch up to the car and discover two stolen guns in the trunk of the car. Mr. Gross admits to owning the (stolen) handgun. Mr. Gross has a restraining order out against him, making him a prohibited person for gun possession purposes. He pled guilty and waived his right to challenge the procedural reasonableness of any sentence but could challenge the substantive reasonableness if it exceeded the guideline range. Mr. Gross appears to have anger issues – he has numerous misdemeanor level assaults/batteries. One of his ex-girlfriends eventually gets a restraining/protective order against him. (This is the order that makes him a prohibited person.) He also has minor drug and vandalism offenses. But he has no felonies. His guideline range was 57-71. The judge sentenced him to the statutory maximum 120 months. As this was far above his guideline range, Mr. Gross appealed his sentence. Now remember there was an appellate waiver for procedural reasonableness of the sentence but not for the substantive reasonableness. He raises 3 challenges: 1) his base level was inflated because he should not have gotten the enhancement for the stolen gun and the one for the drive-by; 2) a jury has to determine if he knew the gun was stolen and whether it was a drive-by or just negligent use of a firearm (Apprendi/Alleyne challenge); and 3) the court didn’t properly consider 3553(a) factors in giving him such a high sentence. The Tenth points out that the first two arguments are procedural unreasonableness arguments and barred by the appellate waiver. It declares “A defendant may not make an end run around an appeal waiver by suggesting we should evaluate the way the district court calculated the Guidelines range as part of our substantive [reasonableness] analysis.” They do recognize the procedure affects the substance but they are really into enforcing that waiver of procedural reasonableness. And then, they concluded the 120-month sentence was perfectly reasonable.

United States v. Woody, 45 F.4th 1166 (10th Cir. 2022) Fourth Amendment challenge to statement; Miranda issue; admissible hearsay if for medical purposes sexual assault edition; substantive reasonableness of sentence. Mr. Woody was convicted after a jury trial of one count of aggravated sexual abuse (CSPM) of Jane Doe1 and two counts of abusive sexual contact (CSCM) of Jane Doe2. Jane Doe1 lived with her mom and stepdad (Mr. Woody); while visiting her dad, she told him that Mr. Woody was molesting her. Dad took Jane Doe1 to the emergency room. Dr. Pilon examined Jane Doe1 including taking a medical history. The medical history included who molested and how molested. The doctor didn’t find any physical injury and reported to Navajo Nation Social Services who in turn notified the FBI. Two FBI agents (Zuercher and Clancy) in plain clothes with their guns hidden drove an unmarked car to track Mr. Woody down. They eventually find him at his niece’s house. He was under a car fixing it when the FBI rolls up. They say they’re FBI and looking for Mr. Woody; Agent Z asks if Woody will talk to them and suggest maybe they not talk in the front yard. They go into the niece’s mobile home. The FBI asks some general questions and then they ask about Jane Doe1’s claims. Mr. Woody balks. So, following some make-the-suspect-think- you’re-his-buddy interrogation advice, Agent Z “told Mr. Woody that if the abuse was ‘a one-time thing,’ it could be ‘explained away’ and would be ‘no big deal’.” (Can we put up a billboards that say: “the FBI is not your buddy” and “no 13 year old girls on the internet want to see your junk”? There were no internet girls in this case. But still I feel like if our clients could grasp these two things it would help their cases tremendously.) Mr. Woody then allows that maybe something happened when he was drunk. Agent Z then assured him that he would not be arrested that day (how clear that the limit on arrest was just to that day was to Mr. Woody is unknown) but they just really needed “to know what happened that night just so we can make sure that we’ve covered everything that we needed to cover.” The FBI somehow gets Mr. Woody to draw a diagram (!) of how he penetrated Jane Doe1’s vagina and write an apology letter to Jane Doe1. (Okay, new billboard: “Do not draw anything for the FBI; do not write letter’s at FBI’s behest.”) After this, the FBI tells Mr. Woody they may call him later with more questions and maybe ask him to take a polygraph. Then they shake his hand and wander off. Now Agent Z realizes that Mr. Woody had lived with a different woman and her daughter (Jane Doe2) a decade ago. So he talks to Jane Doe2. She tells him that Mr. Woody molested her – but seems to limit it to touching. Agent Z calls up Mr. Woody and asks him to come in for a little chat. Mr. Woody agrees. When he gets to the station (a New Mexico State Police Station in Cuba), Agent Z introduces him to Agent Z’s good friend, Agent McCaskill, who just happens to be a polygraph examiner. Both agents were dressed in plain clothes, Agent Z’s gun was hidden, and Agent McCaskill didn’t have a gun. They didn’t pat Mr. Woody down or search him in anyway. Nor did they handcuff him or restrain him in anyway. Agent McCaskill takes Mr. Woody into a room where the polygraph was set up. Agent Z waited outside. The door is closed but not locked. Apparently there are a lot of forms associated with polygraphs and Agent McCaskill painstakingly (according to the opinion) went through them. He started with the standard FBI advice-of-rights/Miranda form (which SCOTUS seems enamored of – they always point out how good it is in insufficient warning cases). Mr. Woody said he understood his rights. Agent McCaskill asked if he was willing to answer questions without an attorney present. Mr. Woody twice responded, “I guess,” and both times Agent McCaskill told him that he needed a clearer answer than that, stating, “If you want an attorney, if you don’t want to answer questions today, then that’s your right.” Eventually, Mr. Woody says he will answer questions and signs the FBI’s paradigmatic form (on McCaskill’s computer, I do not know why that is important but the opinion specified it, so I’m just passing it along). Then, Agent McCaskill pulled up the polygraph specific forms. He repeated that Mr. Woody didn’t have to take it and he could leave at any time. Mr. Woody signed these forms as well. Agent McCaskill asked Mr. Woody some getting to know you questions. And since it’s the FBI, these questions included “Did you diddle Jane Doe2?” Mr. Woody answered, “Well, I used her hand to touch my penis, does that count?” (The conversation is reconstructed from my imagination which is really how most reconstructions of records go.) Agent McCaskill was flabbergasted by the admission and got Agent Z. Agent Z started recording his conversation/interview and asked again about JaneDoe2. Mr. Woody reports 2 instances of CSPM with JaneDoe2 and the one CSPM with Jane Doe1. For whatever reason, these admissions meant no polygraph. The FBI then got Mr. Woody to write an apology letter to Jane Doe2. And so, we cheerfully head off to trial. Recognizing that those admissions might make trial a wee bit of a challenge, defense counsel moved to suppress the statements and opposed the admission of the doctor’s testimony about what Jane Doe1 said to him. The court below (and on appeal too to be honest) was having none of it. It was all admitted and Mr. Woody (to no one’s surprise but his own) was convicted of all charges. At sentencing, he gets 3 concurrent life sentences; he asked for 30 years. The Tenth Circuit decides that Jane Doe1’s statement to Dr. Pilon was made for purposes of medical diagnoses or treatment and thus is an admissible exception to hearsay. (My evidence professor had a useful, if not 100% legally accurate, way of differentiating between admissibility of hearsay when the declarant was available and unavailable. If the declarant was available and it was admissible it was an exception (legally correct); and if the declarant was not available but the hearsay/statement was still admissible, then it was not-hearsay (not really legally correct). Under this construction, the statement to Dr. Pilon is an exception not not-hearsay. The Tenth does not actually discuss if Jane Doe1 was available but them’s the rules.) The Tenth acknowledges that in general, a statement about who did the abuse is not for purposes for medical treatment or diagnosis but the abuser’s identity can become “reasonably pertinent” to treatment or diagnosis (usual presentation: abuser has chlamydia so it is necessary to know the identity of the abuser because need to know about the chlamydia) but here the Tenth agrees that here despite no STD concern, it was still relevant. Custody was shared between parents and mom still lived with Mr. Woody, so need to know that he was the abuser to evaluate her ongoing safety. Before you get too excited that there is no ongoing custody issue or STD in your case so you can totally get around that exception, the Court also pointed out that individuals who suffered from “ongoing domestic sexual abuse,” often have continuing issues stemming from the ongoing abuse and so the identity is always important to identify and treat those issues. [Echo of door slamming.] The Court also makes clear that this testimony is not expert testimony and did not reflect Dr. Pilon’s opinion that the abuse did in fact happen. As a way to keep us hopeful, the Tenth does allow if it was his expert opinion that the abuse happened because of what Jane Doe1 said, it would not be admissible. Mr. Woody challenges his first confession at his niece’s house as the product of an unlawful seizure/Fourth Amendment challenge rather than a Fifth Amendment challenge. The Court points this out and says it will not consider any Fifth Amendment challenge (not that it likely would be successful) just because they like to has that moment of panic that we somehow missed the winning issue. So, the argument is that his statement is the fruit of the poisonous tree and the poisonous tree is the unlawful seizure. The Court never gets to this precise question, instead holding it was not an unlawful seizure. Sigh. Everyone agrees that there was no reasonable suspicion to seize Mr. Woody so it all comes down to whether the encounter was consensual. The Court has a list of things to consider in determining if someone would feel free to leave (that they remind us is “non-exhaustive”) like: the location of the encounter; number of officers and their demeanor and tone of voice; if they’re in uniform; if they’re displaying their weapons; if they have anything of the defendant's (e.g. ID) and how long they hold on to it; whether the officers touch or physically restrain the defendant; if they’ve told the person they are free to leave. Running through this list, the Tenth Circuit decided that since the encounter occurred in the niece’s home it wasn’t public and that weighed in favor of it being non-consensual. The Tenth then extols the virtues of the FBI: the only touching was shaking of hands; they didn’t show their weapons; they were polite (“conversational and respectful”); they were in plain clothes; they didn’t have his ID or anything; and there were only two of them. Mr. Woody counters with Agent Z outright lied to him about it not being a big deal (because it turned out to be a very big deal – while I can see the Tenth saying that technically, it wasn’t a lie, it was an understatement! They instead take the opportunity to tell us that law enforcement can lie with impunity most of the time); the Agents walked onto private property when he was under a car repairing it so he couldn’t just leave. (The Tenth does not say if there was a sidewalk or anything about the house and its curtilage, like was the car around the back of the house?) The Agents never told Mr. Woody that he didn’t have to talk to them. The Tenth Circuit acknowledges these factors don’t look good, but lying (by law enforcement) isn’t bad per se. It would only invalidate consent if the lie was something like “Hey, we think there are live bombs in your house, so can we look around?” (Remarkably, this hyperbole is from an actual case, United States v. Harrison, 639 F.3d 1273, 1278 (10th Cir. 2011).) And well, it was at his niece’s house but he invited them in (ooh! New ad campaign: “Cops are vampires! Do not invite them in!”). And because it is the Tenth Circuit, they speculate “a reasonable person might feel freer to decline to speak with police after being told that the alleged crime was ‘no big deal’.” at 1176. The Tenth Circuit judges are apparently not easily intimidated and think we would all react like confident old white men.[1] (I’m trying Hartz’ approach of putting important but not necessarily on point thoughts in a footnote. If you do not know what I am talking about please read either United States v. Cortez-Nieto, 43 F.4th 1034 (10th Cir. 2022) or my summary of it.) Anyway, this admission (and letter and drawing) come in. Defense counsel also tried valiantly to prevent the statements given prior to the polygraph-that-never-happened from coming in; specifically, he argued that Mr. Woody’s Miranda waiver was not knowing and voluntary. The Tenth Circuit gives this argument short shrift. They merely say the waiver is just fine because there is no whisper “of any deficiency in Mr. Woody’s mental state or mental capacity” and the agents did not commit a crime of violence against him. (Okay, they actually said, “The agents never threatened to use or used any physical force against Mr. Woody.” But given the definition of a crime of violence, “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” I’m sticking by my characterization.) His equivocal “I guess” response didn’t render the waiver involuntary because Agent McCaskill sought to clarify that answer “to ensure Mr. Woody’s uncoerced willingness to continue with the interrogation.” It didn’t mean he pressured Mr. Woody into giving his statement. The Tenth also points out that there is a question about whether Mr. Woody is in custody (hinting they really don’t think he’s in custody), but that since they determine the waiver was fine they didn’t have to address that. As for the life sentence rather than 30 years? The Tenth says it is substantively reasonable because the judge explained why the sentence he imposed was “sufficient, but not greater than necessary, to comply with the four purposes that 18 U.S.C. § 3553(a)(2) enumerates.” (The judge literally said magic words that inoculated the sentence from the Tenth looking skeptically at it.) Upon further reflection on the ad campaign, maybe nix the “cops are vampires” billboard? I think we’d also have to say don’t behead them and don’t stab them in the heart with a wooden stake. The other billboard ideas are solid. The one about “No 13 year old girl on the internet wants to see your junk” is critical; I made a joke about it once and an acquaintance of mine insisted there really are 13 year old girls on the internet who want to see your junk. But no, just no. That 13 year old girl is a cop (or one of those on-line vigilante people). [1] Slight diversion to one of my windmills: I know that United States v. Easley, 911 F.3d 1074, 1081 (10th Cir. 2018) says we shouldn’t “consider subjective characteristics like race as part of our reasonable person analysis.” And then the 11th doubled down on that in United States v. Knights, 989 F.3d 1281, 1288 (11th Cir. 2021), cert. denied, 142 S. Ct. 709 (2021) (“We may not consider race to determine whether a seizure has occurred.”)) But I think it’s important to keep pointing out that race matters. And in our indigenous clients’ cases, there is also the historical trauma of colonization and the continued dismissal of tribal sovereignty. I still think that JDB provides a jumping off point because of the similarities of analysis of the “objective” custody analysis and the “objective” seizure analysis. They consider demeanor and tone of voice, how many and how they’re dressed. They’re making subjective assumptions on how those things are perceived. Is a uniform more intimidating than a suit? (I admit I’ve never actually seen a cop in a suit outside of court or TV but still, suits are power – hence calling people in power “suits.”) Does it matter if the guy’s tone of voice is polite if he’s giving orders? (There was a state case where they searched the guy’s house without a warrant, and they said it was consensual because the cops were polite despite the fact the guy felt he had to ask permission from the cop to do anything in his own house.) And a bunch of men is more intimidating than a mixed gender group – but I can disguise that one more by pointing out disparities in size between our client and the officers. Still there is a hidden subjective perception that bigger is more intimidating: but is someone who is small but really strong and fit really less scary then someone who is tall but obviously out of shape? Okay, jumping off the soap box.

United States v. Gladney, 44 F.4th 1253 (10th Cir. 2022) First Step Act resentencing & Standing Short version: No resentencing for you! Mr. Gladney was eligible under the First Step Act for resentencing because one of his convictions was for a converted offense but since one of his other convictions was not a covered offense and was a life sentence, there was no point to resentencing because the First Step Act does not authorize a complete resentencing on all counts, just the covered ones. No available relief = no controversy = no standing. Long version: Almost a score of years ago at the notorious Alpine Rose Motel[1] in Denver, Mr. Gladney dealt drugs – including crack cocaine. Eventually, law enforcement shut it down and a lot of people ended up with a lot of convictions. Mr. Gladney was one of them; he ended up with convictions for RICO, drug conspiracy convictions, and a 924c. His RICO and drug convictions carried life sentences. 2018 saw the First Step Act make the Fair Sentencing Act (addressing the idiotic crack/cocaine disparity) retroactive. Mr. Gladney’s crack conviction is a covered offense so he is eligible under the First Step Act. But the Tenth Circuit believes that the First Step Act does not grant the district court blanket authority to resentence; it can only resentence on a covered offense. RICO was not a covered offense. That sentence was a life sentence. Any resentencing, then, would be an empty gesture. Being the Tenth they take this conclusion and jump it to a conclusion that Mr. Gladney has no standing because no actual “live” controversy even though there is jurisdiction.