United States v. Canada

United States v. Canada, 74 F.4th 1304 (10th Cir. 2023): Mr. Canada appealed the denial of his motion to suppress on the grounds the officers lacked reasonable suspicion to engage in a warrantless protective sweep of his vehicle. The majority Judge Rossman dissented) upheld the district court’s determination that officers had reasonable suspicion Mr. Canada was both dangerous and may gain immediate access to a weapon based on his “slow roll” and furtive movement towards the backseat. Mr. Canada was pulled over on a rainy evening for failing to use his turn signal. He was driving through a high-crime area where Officers Jensen and Sanders were conducting a proactive patrol. After the officers engaged their emergency lights, Mr. Canada took approximately fourteen seconds to come to a stop. Dash camera footage showed Officer Jensen comment, upon exiting the patrol car, that the stop appeared to be “a little bit of a slow roll here.” At the suppression hearing he testified the stop did not take “an absurd amount of time,” but it was “a little bit longer than usual.” He further testified a “slow roll” may suggest that the driver “is attempting to hide or retrieve something inside the vehicle, maybe trying to come up with an exit plan or strategy, decide if they want to stop or don’t stop.” On his approach to the passenger side of the vehicle, Officer Jensen saw Mr. Canada “strenuously arching his hips, reaching his right arm under the rear of his seat with his head facing kind of off his shoulder.” This movement caused Officer Jensen to order him to show his hands and Officer Sanders removed him from the vehicle on the driver’s side. Mr. Canada fully cooperated and a frisk revealed nothing on him. Mr. Canada was moved towards the trunk of his vehicle while Officer Jensen conducted a protective sweep under the driver’s seat and located a loaded .38 Special. The majority determined they need not address Mr. Canada’s argument that officers relied only on his furtive movements to justify their protective sweep because they could also consider the “slow roll” comment. The comment was “a contemporaneous observation from a trained officer” rather than a post hoc rationalization for the protective sweep. Practice tip: try to distinguish your case if you have dash cam/audio and the facts going to reasonable suspicion don’t come out until later through a written report and/or testimony at a suppression hearing. The majority determined the “slow roll”, and furtive movement were enough to establish reasonable suspicion that Mr. Canada was both dangerous and had access to a weapon. They reasoned that, even if officers weren’t sure whether they were going to arrest Mr. Canada, he was not handcuffed or detained in a squad car and could have broken away to access a weapon. Judge Rossman’s dissent is worth reading as it analyzes a “tension in our reasonable suspicion jurisprudence, specifically our two-part clear error/de novo standard of review.” Judge Rossman points out the Tenth Circuit’s “light most favorable” language doesn’t come from a Fourth Amendment case and that despite the Supreme Court’s directive in Ornelas requiring clear error review of factual findings and de novo review of “the ultimate questions of reasonable suspicion”, “our Circuit’s continued application of the a light-most-favorable bias does not abide the standard formulation of clear error review and is incompatible with a principled de novo analysis.” Judge Rossman was not persuaded the “slow roll” by Officer Jensen went to reasonable suspicion since Mr. Canada took only 14 seconds to stop on a dark and rainy night. She reasoned a de novo review of all the facts of the stop (weather, time of day, multilane road with other drivers) led her to conclude Mr. Canada pulled over promptly and the district court erred by crediting the “slow roll comment” at all. Please consider highlighting the issue raised by Judge Rossman in future 4th Amendment cases.

United States v. Faunce

United States v. Faunce, 66 F.4th 1244 (10th Cir. 2023): the panel holds it was not plain error for the district court to rely on a sub-section of the state’s criminal mischief statute different than the one cited by the government in the revocation petition. It also rules that, as a matter of first impression, Faunce’s due process rights were not violated by the district court’s decision to let an alleged victim testify by live video. Additionally, that decision was not an abuse of discretion. The panel holds that under plain error review the district court didn’t ‘constructively amend’ the revocation petition by using a different statutory subsection than the government cited. Most importantly, Faunce did not show any error affected a substantial right. The district court found Faunce had violated seven conditions of supervised release. Two of those were grade A violations which dictated the recommended guideline imprisonment range. Even without the criminal mischief violation, the imprisonment range would have been the same. And likewise the sentence imposed. The criminal mischief was a grade C violation that “paled in comparison to the far more serious violations of kidnapping and aggravated assault.” Besides the court could have considered the conduct even if the government hadn’t alleged it violated a supervised release condition. Faunce then made numerous arguments assailing the court’s decision to let the alleged victim testify remotely. None persuaded the panel. Still, our Utah FPD colleagues made an impressive due process challenge to the district court’s decision which allowed the alleged victim to testify by Zoom. They cited empirical studies, movie scenes showing cross-examinations, evidence involving in-court use of technologies like closed-circuit television, Blackstone commentaries and Supreme Court opinions to support the arguments that testimony by video conference dilutes the right of confrontation and that the right to physically confront a witness has a lengthy historical tradition. Due process, they said, gives the accused the right to in-person questioning of adverse witnesses at revocation hearings. Unfortunately, this argument wasn’t made in the district court. Using plain error review the panel decides that “given Faunce’s opportunity to see and hear [the victim] in real time, the district court didn’t commit an obvious or clear error in declining to sua sponte to find a denial of due process.” Per Faunce’s request, the panel next reviewed the district court’s Zoom decision under the Jones/Rule 32.1 balancing test. United States v. Jones, 818 F.3d 1091, 1100 (10th Cir. 2016). In Jones the court adopted Rule 32.1’s balancing test to determine the admissibility of hearsay in revocation proceedings. The panel commented that it wasn’t certain Jones applied because the context here was different. Ordinarily, the balancing test evaluates the reliability of out-of-court statements because of the inability to cross-examine a witness. In comparison, the panel said the balancing here involved the difference between Faunce’s ability to confront the alleged victim in person and through Zoom. It ruled that because the district court considered the balancing arguments from both parties, it correctly decided that credibility still could be evaluated via Zoom. Both the court and Faunce could see the alleged victim’s “mannerisms and body language.” Additionally, as the district court noted, she was not central to the government’s case and there were “practical difficulties [in] obtaining her presence.” Also, the court had “positive experience” with remote hearings throughout the pandemic. The record therefore demonstrated that the district court adequately balanced the parties’ competing interests and it did not abuse its discretion by allowing testimony via Zoom.

United States v. Griffifth

United States v. Griffith, 65 F.4th 1216 (10th Cir. 2023): The panel rules that an officer’s expert testimony about Griffith’s lack of credibility was not plain error. It also finds that a victim’s statement to a sexual assault nurse examiner identifying an individual as the perpetrator is made for the purposes of medical diagnosis or treatment and thus an exception to the hearsay rule. At trial Griffith’s defense was based “primarily on [the victim’s] dishonesty.” He argued that she “had frequently manipulated others by making false allegations of sexual abuse.” Id. at 1218. Officers that interrogated Griffith testified that he was dishonest and his comments were either fabricated or inconsistent. Because defense counsel did not object to this testimony, on appeal the panel reviewed Griffith’s challenge to that testimony for plain error. The panel agreed that this type of expert testimony “generally” is not admissible. Id. at 1217. It therefore focused on whether Griffith could establish that the testimony had an effect on a substantial right. This element is shown with proof that but for the error, there is a reasonable probability that the result of the proceeding would have been different. To assess the probability of a different result, the panel examined for factors: (1) the strength of the parties’ respective cases; (2) whether the improper evidence affected the parties theory of the case; (3) the extent that the parties emphasized the improper opinion testimony; and (4) whether the jurors were able to independently assess the accused’s credibility. Id. at 1218. Here, the panel concluded these factors did not demonstrate a different result was reasonably probable. Griffith’s defense “focused largely on [the victim’s] credibility.” Id. The improper opinion testimony had little, if any affect, on his theory of the case. Additionally, there was evidence corroborating the victim’s version of events. Id. at 1222. Neither side mentioned Griffith’s credibility in closing. The jury independently assessed Griffith’s credibility when it watched the video of the officers’ interrogation. And the jury instructions did not refer to the officers’ expertise. Rather the instructions told the jury to treat their testimony in “the same way as that of any other witness.” Id. at 1223. Regarding the victim’s statement to the nurse in which she identified Griffith as the perpetrator, the panel said it was bound by precedent. The panel in United States v. Edward J., 224 F.3d 1216, 1219-20 (10th Cir. 2000) held that a victim’s statement to a medical provider, identifying the perpetrator, triggers Fed.R.Evid. 803(4)’s hearsay exception. 65 F.4th at 1223. Therefore, the district court correctly allowed the nurse to tell the jury about the victim's comment.

United States v. Wesley, 60 F.4th 1277 (10th Cir. 2023)

United States v. Wesley, 60 F.4th 1277 (10th Cir. 2023): The panel holds that a motion to reduce the sentence under 18 U.S.C. § 3582(c)(1)(A)(i) cannot be used to get around the procedural and substantive statutory restraints imposed by 18 U.S.C. § 2255, such as timing, content of the motion and grounds on which one can bring additional motions. Wesley had already filed a § 2255 motion and a motion under § 3582(c)(1)(A)(i). In his latest § 3582(c)(1)(A)(i) motion, which the district court denied, he argued the prosecutor solicited false testimony about drug quantities; his choice to go to trial resulted in an unreasonably longer sentence compared to co-defendants who pleaded guilty; and his sentence was excessive compared to more culpable co-conspirators. The panel focused on the prosecutorial misconduct issue. It admitted that if true, the prosecutor’s conduct would violate the Fifth Amendment due process clause. But the panel said, the district court was correct in finding it had no jurisdiction to consider that claim. When a defendant attempts to raise “§ 2255-like claims outside of § 2255 . . . such a motion, however captioned or argued must be treated as a § 2255 motion.” 60 F.4th at 1288. Because this was Wesley’s second § 2255 motion, he had to ask the Tenth Circuit for permission to file a successive petition as well as satisfy the content requirements described in § 2255(h)(1). Since he failed to do either, the panel affirmed the district court’s decision. Update: the Tenth Circuit denied rehearing en banc, with a dissent from Rossman.