Extended detention was reasonable

United States v. Samilton, 2022 WL 17817883 (10th Cir. December 20, 2022) (W.D. OK.): The panel finds an officer had reasonable suspicion for an extended detention although in his repeated searches of Samilton, the car in which he was riding and the area around the car, the officer found nothing incriminating. Of course, at some point he did find something incriminating (19 minutes after the detention began). The facts: A hotel clerk called the police because a man sitting in a car in the hotel parking lot had a pistol in his hand and had been waving it around inside the car. The clerk also had seen the man knocking on several hotel room doors and did not believe he was a guest. A black woman sat in the driver’s seat of this four-door, dark-colored sedan. The officer that approached the car partially corroborated the clerk’s description of the occupants – a black female driver and a bearded man in the passenger seat. The panel noted the clerk said the man was white, but he actually was black – evidently a discrepancy of no consequence. The officer said the hotel was in a “high crime area” in which 3 to 5 robberies per week were not uncommon. When he walked up to the car he saw the passenger make “furtive movements,” as if he was “trying to hide a firearm.” But he also heard a noise like a firearm or magazine that had been thrown out the window and hit the pavement. In the panel’s view, what the officer did next was simply diligently pursue a means of investigation. Searching Samilton, the car, and the area around the car, were means likely to confirm or dispel his suspicions quickly. The panel said the detention was justified because at each turn, the officer’s suspicion that there was a gun somewhere was confirmed by what he observed. First, the panel said, the hotel clerk had witnessed conduct that was consistent with criminal behavior – a man brandishing a gun in a car and knocking on hotel rooms. Second, Samilton’s “furtive movements” suggested he was trying to hide something and were inconsistent with someone who was permitted to carry a firearm. Third, when the officer asked whether there was a gun in the car, his answers were evasive. Apparently, when he should have said, “no,” Samilton told the officer, “you already checked me,” and “I don’t have no gun.” Fourth, the officer had reason to believe there was a gun nearby; he heard the sound of a gun or magazine hitting the pavement, the driver admitted there was a gun on the passenger side of the car and the officer found a 9 millimeter round on the floor near the passenger seat. Fifth, the officer was told by dispatch that Samilton was a felon, implying that there was a reason for him to have hidden the gun. The panel concluded that just because the officer didn’t find the gun right away, does not mean he wasn’t diligent. Given all these suspicious factors, he had enough to hold Samilton until he found the gun under the passenger seat.

Court addresses issues of sufficiency and reliability of evidence at sentencing

United States v. Leib, ___F.4th___, 21-2136, 2023 WL 216401 (10th Cir. Jan. 18, 2023) Short version: Government only has to prove facts at sentencing by a preponderance. To justify increase they had to prove our felon in possession used the gun in another felony. Here the state met that by the sworn arrest affidavit based on footage from the officers’ body cams; and mom’s hearsay statement that Mr. Leib shot the floor. Mom’s statement is reliable because there is no indicia that she might be biased against her son and the totality of the circumstances support her statement – primarily multiple people hearing gunshots and a gun next to him with spent shells. Long version: USSG § 2K2.1(b)(6)(B) adds four levels for a felon (or other prohibited person) in possession of gun who uses/possess a gun or ammunition in connection to another felony. “‘Another felony offense,’ for purposes of subsection (b)(6)(B), means any federal, state, or local offense, other than the ... firearms possession ..., punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” Id. cmt. 14(C) Mr. Leib has some mental health challenges which led to some substance abuse issues and some criminal history (or, according to the court, long and violent). He was living with his parents. He went out and got drunk. He came home and locked himself in his room. His mom’s friend called 911 because she heard shots in the Leib’s home. A police dispatcher called defendant's mom, who reported she was hiding in a bedroom but was worried her son may have shot himself. So, police roll up and try to get Mr. Leib to come out. He doesn’t respond and eventually they look in his window and see that he is passed out with a gun next to him. They go into his room, take the gun, notice three spent shells, and determine that Mr. Leib doesn’t need medical attention because he’s just drunk. One of the officers examines the walls and ceiling and announces he doesn’t see any bullet holes. Mom helpfully points out that’s because they’re in the floor. All of this captured by body cams. The State charges Mr. Leib with shooting at a dwelling and felon in possession. But they drop the charges because Mr. Leib picks up a federal felon in possession charge for this incident. (So, instead of 2 fourth-degree felonies which would get him a max of 36 months, he gets 100 months for his 922(g) but was facing 120.) He pled to the felon-in-possession but disputed that he used the gun in connection with another felony – specifically the New Mexico offense of shooting at a dwelling/occupied building (NMSA 1978, § 30-3-8(A)). The elements are 1) willfully 2) discharging a gun at a 3) dwelling 4) you knew was a dwelling. (Or if it was an occupied building; knew or should have known it was occupied.) (Leib did not challenge if shooting entirely confined in a dwelling is shooting at a dwelling – the 10th points to an unpublished NMSC opinion saying shooting at the ceiling in an apartment building counts. But that was at a different apartment so a different dwelling. Maybe a thought to try and get the 10th to certify to NMSC on this sort of question; we do have State v. Tafoya, 2012-NMSC-030, 285 P.3d 604 which held a shooting entirely in a car is not shooting at or from a car.) Leib did challenge whether he willfully shot at the dwelling. The Court agreed that it was not enough “for the Government to show that Mr. Leib discharged a gun in the home or that somehow bullets ended up in the dwelling. …The Government had to show that the house was Mr. Leib’s ‘principal target’.” Mr. Leib argued that he was trying to kill himself and that he was the target, not the house. The district court disagreed because 1) his mom didn’t say he was suicidal (even though she said she was worried he may have shot himself. Also, I feel if we consulted Taryn on how often people admit they’re suicidal or have people close to them recognize that fact, the numbers would not be high.); 2) he discharged the gun three times, so it wasn’t an accident; 3) when Mr. Leib attempted suicide before he succeeded in injuring himself so since he didn’t hurt himself, he obviously wasn’t trying to kill himself. And for the first time on appeal, so with plain error review, Mr. Leib argued that his mother’s statement was unreliable hearsay. But the court says no error. The totality of the circumstances (phone calls, police response) supports that he fired into the floor. Further, the court said: “Although [mom’s] statement that Mr. Leib shot into the floor was unsworn, it was observed by the three responding police officers and by the affiant officer who reviewed the body camera audio and video recording.” This pronouncement by the court implies the more people who hear something the more true it becomes. Affirmed.

Court disapproves of dismissal based on long delay in bringing federal indictment; reverses

US v. Garcia, -- F4th --, 2023 WL 1807716 (10th Cir. Feb. 8, 2023) Defendant won the battle in district court but lost the appellate war. Mr. Garcia was indicted by both the state of Colorado and the federal government after a shoplifting incident at a Kmart and a shootout two days later in July 2017. The federal indictment charged Mr. Garcia with possessing a weapon contrary to 18 USC 922(g)(1), robbing the Kmart contrary to 18 USC 1951(a), and violating 18 USC 924(c)(1)(A)(i), (ii) and (iii). The federal indictment was sealed for almost two years while Colorado did its thing. In Colorado state court, Mr. Garcia pled guilty to first degree assault and got a 23-year sentence on August 16, 2019. The government moved to have Mr. Garcia brought to federal court on August 15, 2019; the motion was granted; and Mr. Garcia made his initial appearance in federal court on August 20, 2019. Defendant on 3 occasions requested continuances and moved to exclude 210 days from the speedy trial clock, and the district court granted the motions. Eight months after his initial appearance, Mr. Garcia moved to dismiss the Indictment based on the claim that his 6th Amendment right to a speedy trial was violated. The district court agreed and dismissed with prejudice, and then denied the government’s motion to reconsider. The government appealed, and the Tenth Circuit reversed. The Court first observed that the remedy for a speedy trial violation – dismissal with prejudice – was “severe” and then went on to apply the Barker v. Wingo factors. The first factor, length of the delay, weighed in Mr. Garcia’s favor. The “especially important” second factor – reason for the delay – weighed in the government’s favor: “we conclude the delay caused by the government’s decision to wait until the state prosecution finished to avoid jurisdictional conflicts was permissible.” Additionally, the charges against Mr. Garcia were sufficiently complex to warrant the government’s delay. The third factor – assertion of right – weighed against the defendant because he waited eight months and requested 3 continuances before filing his motion after the government unsealed the indictment. The fourth factor – prejudice – also weighed in the government’s favor as the defendant failed to show that video evidence from the Kmart would have ever been available and thus failed to show the delay in prosecution caused the loss of the video. The defendant also did not prove he was in pretrial custody oppressively long because the federal detainer prevented him from bonding out of state custody because 1) the 23-month delay was not presumptively extreme delay and 2) he received credit from the state court for his pretrial incarceration. So, the order dismissing Mr. Garcia’s indictment was reversed.