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.